It’s when we’re sick or injured that we can be most vulnerable to negligence — and also when negligence can do the most harm. This became starkly clear when we took a case involving possible nursing home neglect. No one wants to be in a situation of vulnerability, let alone one that requires an attorney; but in some cases an attorney is necessary to achieve justice and regain autonomy.
A vibrant, beloved woman
Margaret* and Tom Baker* were a retired Ohio couple who had adopted and were actively raising two grandsons after the death of their son years earlier. They were active, vital, and very much a part of their grandchildren’s lives. The Bakers took their grandchildren to school and church, helping them study and participate in after-school activities. Everything the kids needed to grow up happy and healthy, the Bakers provided.
Then trouble struck: Margaret, 71, fell and broke her hip. After her initial treatment at a hospital, she was sent to a nursing home for rehabilitation before returning home to Tom and their grandkids.
At some point, complications ensued. She was readmitted to the hospital and, again, discharged to the nursing home. This time, after only a few hours at the nursing home, Margaret tried to stand up, and in the course of attempting to walk, slipped and severely injured her head. The next day, Margaret died.
Assessing a challenging case
As sad as Margaret’s case was, it wasn’t immediately clear we could help.
For one thing, when Margaret was readmitted, she hadn’t been there long enough to be tested and assessed as a “fall risk” (a term used to describe residents who could injure themselves by falling if they tried to walk alone; this designation activates special measures designed to keep them safe). Without this assessment, it would be difficult to establish the nursing home’s liability.
Moreover, nobody had actually seen Margaret fall. She was found by a therapist, and the medical records gave no indication of how long she’d been injured before being found, whether anybody had seen her, or if any other staff had been walking by the room.
Strategically establishing nursing home neglect
It is our responsibility to strategically establish liability, and doing so requires creativity and diligence.
By digging into Margaret’s full medical records, we were able to establish that she had in fact been assessed as a high fall risk during her initial admission. From the first admission, the nursing home staff also knew that Margaret had gotten confused and tried to get up and walk out of the premises.
We worked with an expert who was an authority on nursing home issues in order to identify what steps a nursing home can and should take to prevent falls like Margaret’s. In particular, the expert helped determine what sorts of steps a nursing home should take when it’s already familiar with a patient, and how that should change the readmission process. In light of the information the nursing home already had from Margaret’s first admission, the expert was able to point to a number of shortcomings in how the nursing home handled her readmission.
We walked through the nursing home to see how it was laid out and how somebody could possibly walk around or fall without being seen by the nursing staff. We were able to determine that although Margaret was a high fall risk and the nursing home knew she was prone to get out of bed on her own, she had not been placed in a room where staff could monitor her, nor was a staff person assigned to keep an eye on her at all times.
Once we dug up these issues and brought them out in discovery, the nursing home knew they had problems. They ultimately settled with Margaret’s family.
A settlement helps a family
Settling the case brought about a number of positive outcomes. First and foremost, justice was served. There was an implicit acknowledgment that the nursing home knew it had been negligent and that it was attempting to make amends. Ideally, too, the nursing home would learn from this experience and improve the care and oversight of its other residents.
The settlement also represented a sense of closure for the family, of learning who was responsible and holding them accountable on Margaret’s behalf. We noticed that the family seemed to be doing better emotionally when the case had finally been resolved and some closure had been attained.
And, of course, the settlement would help provide for the family. The children, who were in middle and high school at the time, would have financial help for college a few years down the line. Sadly though, what Tom and Margaret’s grandchildren most needed — the care and concern of a beloved, active maternal figure during their formative years — had been taken from them, and nothing could replace that.
Placing responsibility where it belongs
There was another good thing that resulted from the settlement, something that really resonated with us emotionally: throughout the case, we were profoundly struck by Tom’s selflessness. Grief-stricken as he was by the loss of his wife, it seemed as if he was even more concerned about his grandchildren’s loss. He felt some degree of blame for what had happened, and it was heartbreaking to see.
He had been with Margaret when she was readmitted to the nursing home, but he’d needed to leave to pick up their grandkids after school. He had told the nurses he was leaving, yet he kept blaming himself for not doing more: if only he had not left; if only he had insisted that somebody stay with Margaret so she wouldn’t be left alone.
By establishing the real cause of this tragedy — nursing home neglect — we gave Tom the means to stop blaming himself and finally gain some relief from that terrible burden of responsibility he’d felt.
Providing closure and achieving justice
Blame, guilt, responsibility, closure, justice — these are all real things. They matter to our clients, so they matter to us. Walking in their shoes and trying to understand their emotional needs is a big part of what we do here.
What would have happened if we’d decided it was too difficult to take on? Or if we’d taken the case but not pursued the facts sufficiently to establish negligence? Those are ugly what-ifs. Fortunately, we’ll never have to know the answers to them. Instead, we got to see a family achieve some sense of closure, and a selfless man find peace again.
*Names in this article have been changed to protect our clients’ privacy.
The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.
