Losing a loved one because of nursing home abuse or neglect is one of the most devastating consequences a family can imagine. Unfortunately, these deaths do occur, whether by negligence or as the unintended result of insufficient staffing, or inadequate training or poor supervision.
In these instances, the next of kin or personal representative of the deceased may be able to file a wrongful death lawsuit against the nursing home or assisted living facility.
The Nursing Home Care Act, 210 ILCS 45 (NHCA), states that owners and licensees of nursing homes “are liable to a resident for any intentional or negligent act or the omission of their agents or employees which injures the resident”.
According to Illinois wrongful death law, the victim’s family or representative must prove that the death was caused by the “wrongful act, neglect or default” of a person, company or corporation; in this instance, the negligent entity would be the nursing home or assisted living facility.
In a nursing home or assisted living facility, a wrongful death can be caused by any number of factors. Here are a few examples of how negligence can result in fatal consequences:
- A fatal infection can develop from untreated bed sores
- A fall that occurred because of inadequate supervision could have deadly results
- Malnutrition caused by poor monitoring and failure to provide adequate food and liquids could result in dehydration or serious illness
- An inadequately supervised patient could become trapped in bed rails and suffocate or strangle
- An unsupervised resident who wanders away from the premises could be killed by a motor vehicle or die from exposure to the elements
- The wrong medication or dosage may be administered
- Medical staff may misdiagnose or fail to diagnose an otherwise treatable disease
Regardless of the circumstances, if the death was caused by neglect or abuse on the part of the nursing home or facility, then the next of kin or representative has grounds for a wrongful death lawsuit.
The death may occur in a setting unrelated to the original act(s) of negligence, and there may be a time delay between the negligent action(s) and the fatal consequences. In these cases, a specific cause-and-effect is not always apparent without further investigation and examination of medical records dating back months or years.
Wrongful Death Damages
Damages in an Illinois wrongful death case are paid “for the exclusive benefit of the surviving spouse and next of kin of [the] deceased person.” The law gives a jury permission to award whatever damages are deemed to be “fair and just compensation with respect to the losses resulting from the death.” Damages are typically awarded to the surviving spouse or next of kin. If the victim was a child, damages are usually awarded to the parents.
Current Illinois law places no caps on damages for wrongful death cases. While the state’s wrongful death laws used to include caps on non-economic damages (a $500,000 cap for verdicts against doctors and a $1 million cap on verdicts against hospitals), the laws governing those caps were overturned in 2010.
Damages may include any or all of the following:
- Funeral expenses and burial services, including clergy fees
- Medical expenses for the cost of the victim’s care from the time the negligence occurred until death
- Pain and suffering of the deceased person prior to death
- Lost income, including the deceased’s financial contribution to the family in addition to any benefits, such as health insurance for the family, that are lost as a result of the individual’s death.
- Loss of consortium, which can include loss of intimate relations and companionship.
Punitive damages are awarded to punish the party responsible for the negligence that caused the death. Sometimes they are intended to serve as an example or a deterrent to others who might commit similar negligent acts.
Wrongful Death Law
According to previous “common law,” wrongful death legal claims did not exist. The courts reasoned that any legal claim “died” with the victim, which prevented surviving family members from claiming damages from the person who caused the victim’s death.
To correct this injustice, individual states passed their own “wrongful death statutes.” Today, every state has some form of wrongful death statute, which differs from state to state as to who can bring a wrongful death lawsuit and what damages may be recovered. In most states, when someone’s death is caused by another’s neglect or wrongful act, the person or entity that caused the death may be held liable for a wrongful death action. Generally, this type of lawsuit may be brought if the decedent could have sued another party for personal injuries, had he or she not died.
Statute of Limitations for Wrongful Death Claims
Under Illinois Law, the statute of limitations for wrongful death lawsuits is generally two years. That means the representative of a deceased person has two years after the date of death to file a lawsuit, or they will forever be barred from doing so. There are certain exceptions to the two-year statute of limitations. For example, the Discovery Rule found in Section 13-212(a) of the Illinois code of civil procedure (735 ILCS 5/13-212(a)) provides that within the four year statute of repose, any claim for malpractice against a health care provider must be filed within ten years of the date the representative knew, or through the exercise of reasonable diligence should have known, of the existence of the death for which damages are sought. There are also exceptions to the two-year statute of limitations (and four-year statute of repose) for causes of actions for minors.
There are also exceptions to the time limit for violent and intentional acts where criminal charges may be involved.
Who can File a Wrongful Death Claim
In Illinois, it is the personal representative of the deceased person’s estate who files the wrongful death claim. In most cases, this is the spouse or adult child of the deceased. If it is a minor child who died, the wrongful death claim may be filed by the child’s parent(s). If no personal representative was appointed or designated in the estate plan, one may be appointed by the court.
Of course, there is no amount of money that can replace the loss of a beloved family member, but grief should not be compounded by mounting medical bills, funeral and burial expenses and other costs the deceased’s income used to cover.
If you have lost a loved one due to the abuse or neglect that occurred in a nursing home or assisted living facility, you may be entitled to file a wrongful death claim. Because the legal process is complex, you need an experienced team of nursing home neglect and abuse lawyers with the knowledge and compassion to guide you through every step of the process and make sure your family gets the compensation you deserve.
Contact us for a free consultation.
Statute 740 ILCS 180/1: http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2059&ChapterID=57