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Nursing home negligence case against Kentucky nursing home filed too late for claim

dismissedIt cannot be stressed often enough or strongly enough: the failure to file a lawsuit within the time allowed by the statute of limitations almost always means the case will be dismissed. While there are a few limited exceptions, most cases must be filed within the limitation period, or else there can be no recovery regardless of the egregiousness of the would-be defendant’s conduct.

This is true in every type of personal injury case, from a car accident to a medical malpractice case to a nursing home negligence case. Earlier this year, the Kentucky Court of Appeals released an unpublished opinion stressing the importance of complying with the Kentucky statute of limitations in nursing home negligence cases.

The Facts of the Case

In the case of Toomey v. LP Augusta, LLC, the plaintiff was a woman who, acting on her own behalf and as executrix of the estate of a former nursing home resident, filed suit against the defendants, a nursing home owner and others, in the Bracken County Circuit Court. The woman’s complaint included claims for personal injury, wrongful death, and loss of consortium arising from the allegedly negligent care and treatment of the decedent. The trial court dismissed the action as time-barred under the Kentucky statute of limitations.

The Decision of the Kentucky Court of Appeals

On appeal, the court affirmed the trial court’s order dismissing the action as time-barred. Although the plaintiff argued that her claims were saved by 28 U.S.C. § 1367(d) or K.R.S. § 413.270, the court disagreed. The court noted that there had been two lawsuits filed in federal court during the period of time between the decedent’s death in 2009 and the filing of the current action in 2013, but it found that neither of these actions could be relied upon to save the current action from being dismissed on statute of limitations grounds.

Although the procedural history of the federal lawsuits brought by the woman was somewhat complex, the court summarized its rationale for denying the woman relief based upon the savings statutes as follows, “The insurmountable defect in the estate’s selected judicial route is not grounded in its failed filings in federal court but is the fact that [the second federal lawsuit] was not ‘commenced in due time.’ [K.R.S. § 413.270.]”

The court further stated that the woman could have opted to file the current state court action within 90 days of the federal court’s dismissal of the first federal action. If she had done so, her action would have been saved under Kentucky law. Her choice to instead refile a new federal action outside the applicable statute of limitations meant she could not pursue a claim in state courts.

To Get Help with Your Loved One’s Kentucky Nursing Home Case

If you believe that a loved one has suffered abuse, neglect, or other mistreatment while living in a nursing home, it is imperative to contact an attorney about your suspicions as soon as possible. The failure to take timely action can not only bar monetary recovery but can keep your loved one in harm’s way. To speak to a compassionate and experienced Kentucky nursing home negligence attorney, contact English, Lucas, Priest & Owsley today at 270-781-6500. We handle nursing home cases throughout Kentucky, including Bowling Green and the surrounding area.

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