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Articles Tagged with wrongful death

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Those who lack familiarity with the inner workings of the civil justice system may be under the impression that a lawsuit is either settled or it goes to trial in front of a jury. However, the fact is that not everyone who files suit gets their day in court, so to speak.

Many cases are decided by a judge via a process known as summary judgment. When a judge grants summary judgment, he or she is essentially saying that, even if the plaintiff is given the benefit of the doubt as to questionable evidence, the law will not allow him or her to be successful at trial.

Usually, summary judgment terminates a civil case. However, a party against whom such an order is entered may appeal the trial judge’s decision, and the court of appeals could see things differently. Continue reading

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By Bob Young, attorney

Our firm is representing the estate and family of a Scottsville, Kentucky, nursing home resident who died at the facility at the hands of another resident – a death that we believe was entirely preventable.

We filed suit in the case this week in Allen County Circuit Court on behalf of the estate and the family.

The facts of the case are as follows.

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Let’s suppose that there is a very important event coming up in your life – your parents’ golden wedding anniversary party or your child’s last middle school basketball game. The event takes place as scheduled, but you don’t get there until the lights are turned off and the door is locked. Maybe you got the date wrong or were confused about the location. It really doesn’t matter. You missed the big event, and there is no way to wind back the clock.

The statute of limitations in a personal injury or wrongful death lawsuit is similar to this situation. If your claim is not filed by the deadline, you have no opportunity to pursue damages, metaphorically speaking.

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Mother and her son looking outDepending upon the law of the state in which a person dies, it may be possible for his or her survivors to file a wrongful death lawsuit, a survival action, or both. Typically, state law also dictates who has the right to file suit, the appropriate lawsuit(s), the types of damages that may be sought, and how the proceeds will be divided among the various interested parties.

Difficulties sometimes arise in identifying the proper party to bring the suit. When this happens, it is up to the trial court judge to apply the law to the particular facts of the case. If any litigant is dissatisfied with the judge’s ruling, he or she may seek relief in the court of appeals, or thereafter the state supreme court.

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glass case, antiques, premesis liability, wrongful death, injuriesWhen a person is injured on someone else’s property, or when a loved one dies as a result of an accident on another party’s property, there is the possibility of filing a premises liability lawsuit seeking compensation for damages such as medical expenses, lost wages, and pain and suffering.

However, the burden is on the plaintiff to prove his or her case by a preponderance of the evidence. Business and landowners are very resistant to a finding of liability and will fight hard for a dismissal of the case if at all possible.

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power plantThe burden of proof is initially on the plaintiff in a personal injury lawsuit. In order to prevail, he or she must prove each of the four elements of negligence (duty, breach of duty, causation, and damages) by a preponderance of the evidence. This is usually done through a combination of expert witnesses and lay testimony.

For instance, in many car accident cases, the basic facts of the crash may be explained by lay witnesses (“I saw the blue car run the red light and hit the side of the white van”). Evidence regarding certain damages, such as injuries and the reasonableness and necessity of medical expenses, requires testimony from an expert witness such as a physician.

In the middle of these extremes are cases in which expert witness testimony would prove helpful but is not strictly required in order for a case to go forward. Sometimes, the parties disagree as to whether such testimony is an actual requirement under the circumstances, and the court must make a decision.

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medicationAccording to government projections, the number of older Americans who rely upon nursing homes, alternative residential care, or home care services is steadily increasing. The Centers for Disease Control and Prevention predicts that this group will increase from approximately 15 million in the year 2000 to around 27 million by 2050. Since these vulnerable, often frail older people rely on others for health care, personal care, and supportive services, nursing home understaffing can drastically affect patient care, and it’s all too common.

The Expected Makeup of a Nursing Home Staff

It takes a variety of personnel to ensure that residents are properly cared for. This can include registered nurses (RNs), licensed practical nurses (LPNs), licensed vocational nurses (LVNs), certified nursing assistants (CNAs), physical therapists (PTs), and others, such as janitors, cooks, and office personnel. Every nursing home in the country is required to report its staffing hours to its state survey agency. While staffing hours is an important number because it shows the total number of hours worked divided by the total number of residents, it does not necessarily reflect the level of care given to any particular resident or even the general level of care on a given day.

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1277878_check_list sxchu username FanginhoonUnfortunately, nursing homes often place the most vulnerable members of our society at risk in their haste to turn a profit. Despite federal guidelines, elderly patients who reside in skilled nursing facilities regularly suffer abuse or neglect at the hands of the individuals who are tasked with their care. In many cases, chronic understaffing results in resident harm.

Common signs of senior citizen abuse include pressure ulcers which are more commonly known as bed sores, serious or frequent falls, combativeness, broken bones, weight loss, and more. For example, pressure ulcers can occur when a nursing home patient is not fed properly or moved at regular intervals. Similarly, overworked staff may be stretched too thin to care for residents’ needs and protect residents from dangers such as falling. In order to prevent dangerous falls, facility residents may simply need additional restroom breaks or senors, alarms or rails installed near their beds.

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file000848537366-2 morguefile username claritaThe U.S. District Court for the Western District of Kentucky has stated a pre-dispute nursing home arbitration agreement is enforceable in a wrongful death lawsuit.  The case involving the arbitration agreement is Life Care Centers of America, Inc. v. Estate of Neblett. In this instance, the patient signed an arbitration agreement before entering a Kentucky nursing and rehabilitation center in November 2013. While residing at the skilled care facility, the woman was allegedly fatally injured due to neglect and inadequate care. Five days after entering the nursing home, the woman died. About six months later, the woman’s spouse filed a wrongful death lawsuit against the long term care facility, its parent company, and its administrator in McCracken County, Kentucky.

The Tennessee-based parent company of the nursing home asked the U.S. District Court for the Western District of Kentucky to enjoin the state court action and compel the dispute to arbitration. The decedent’s husband then filed a motion to dismiss the federal action for a number of reasons, including lack of subject matter jurisdiction. The man also argued that the parties’ agreement to arbitrate was invalid and unenforceable.

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036 morguefile cherie durbinIn Simmerman v. Ace Bayou Corp., the parents of a three-year-old sued several parties following the death of their child, who became trapped in a beanbag chair. The parents filed a product liability action against the manufacturer of the allegedly defective chair, the department store where they purchased the item, and the manager of the store in Fayette County Circuit Court. In response to the lawsuit, the defendants removed the case to the U.S. District Court for the Eastern District of Kentucky in Lexington based upon diversity of citizenship. In general, a defendant may remove a case to federal court as long as the defendants are from different states than the plaintiff and the amount in controversy exceeds $75,000.

Next, the parents filed a motion to remand the case back to Fayette County Circuit Court. Although the store manager was a resident of Kentucky, the remaining corporate defendants have main corporate headquarters in other states. According to the plaintiffs, the Kentucky manager destroyed diversity and required the case to be tried in state court. The store manager, however, countered that she was fraudulently joined in the case solely to defeat federal diversity jurisdiction.

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