Possible lawsuit against nursing facility?

This situation reminds me of something tragic that happened in our family many years ago.

My mom and her sister were very close. I adored my aunt. Unfortunately, she died far too young, in her forties. She had some health problems and was seeing doctors for her issues.

One day she went into a coma and was rushed to the hospital. My mother rushed to her side. She didn’t last but a couple of weeks in the hospital.

It was a terribly sad ordeal. My mom went to visit her daily. My uncle, my aunt’s husband had died two years earlier with cancer. She was raising her two children alone.

My aunt asked my mom to prop her pillow up so she could get more comfortable. My mother lifted her head to prop her pillow and my aunt fell back dead in my mom’s arms.

My mother was devastated. My parents raised my cousins as their own children, a boy, age 9 and a girl, age 15.

My mom was so disturbed by her death and wanted answers. She took my aunt’s prescription to the pharmacy. She told the pharmacist that her sister had been seeing a kidney specialist but suddenly died with kidney failure.

The pharmacist said that her medication was four times the strength that most people take and that a kidney patient should have never been given that medication in the first place and that the doctor must not have recorded a history of her health issues. Nowadays everything is filled in computers.

He then told my mom that he felt that she could possibly sue for malpractice. My mom acknowledged his comments with, “That won’t bring my sister back and I am not interested in suing anyone for any possible mistakes.”

Back then people didn’t question what doctors said. My aunt took the medication without knowing anything about drug interactions or dosage levels, etc. She certainly didn’t know that is was harmful to her kidney disease.

She was at a vulnerable time in her life after losing her husband to cancer. She loved her children so much. She wanted to feel better, become well and was following doctor’s orders.

My grandpa used to say that doctors bury their mistakes. We are fortunate to have come a long way in practicing medicine but that doesn’t mean that things don’t become complicated from time to time.

I am so sorry that you are suffering not having the answers that you desire to know.

Please know that your mom knew that you loved her and that you did your very best.

I’m so sorry for your loss. I understand that you simply want to be acknowledged.

Have you thought about writing a letter detailing the events and ask them for a response? Sometimes something written in black and white will capture more attention than a phone call. Express to them that you feel that you deserve answers to your questions.

Organizations receive a bazillion phone calls a day and can easily be forgotten. A well written letter can explain things in great detail.

I don’t think that I would mention a lawsuit in the letter. I would wait for a response before considering moving forward with a legal matter.

Just a thought...since phone calls have failed.

Best wishes to you in this heartbreaking situation. I sincerely hope you will somehow find peace. Your mom knew that you were doing your very best to care for her.

FullCircle, you raised a keyword:  "parent organization."    If the local unit was a franchise, it may not have met the terms of the franchise agreement.   And unless the parent organization isn't particularly concerned about the issues you've raised, you could probably get their attention.   Go for it.

To all who have replied - thank you thank you. I have read every word and the feedback and questions have given me lots to think about. I think writing this out is just part of the process of grieving my mom.

I don’t actually want to sue - i don’t
want money. I think I just need to express my feedback to the higher ups at the parent organization so there is a bit more visibility and oversight to what may be happening on the front lines’ within the facility. I fully understand this is not an easy time with COVID and the staff are being tasked with many more duties than normal but it feels very different when it’s your parent that you know needs help yet you are not able to do anything. It was my job to protect my
mother and I feel like I failed her.

I don’t thing the NH caused her death but I do think the care she received was neglectful. She was sad and scared and lonely and my heart hurts knowing that was her last week on earth.

Dear "FullCircle,"

I know there are no amount of words that could comfort you right now due to what has happened. It is truly heartbreaking. I feel bad for you and I feel awful that your mom spent her last moments in that manner. I am so, so sorry this has happened to you and it is so appalling to me that the facility never called you. Unfortunately, as I've said on other threads, the hardest thing for me to wrap my mind around is these places are BUSINESSES first and foremost. I do understand because I almost experienced the same thing right in the midst of the pandemic back in April.

My mom is 95 with Alzheimer's. She was perfectly mobile, able to dress and feed herself. I saw her on her birthday, February 14th, one more time on the 28th and then the lockdown on March 13th went into effect. I thought to myself "this is not good - I won't have any idea what is going on or not going on in there." She did not have a window where I could see her for myself and know if something wasn't right. My husband bought her an iPad which was difficult for her to use but, it did help for awhile. Unfortunately, it didn't help when we would need it the most - when she was being neglected and nearly died. We received one frantic call late in the evening - no one said anything and we ended up hanging up. They called back a short time later and the actual Administrator said my mom was weak. My husband had to tell her to give her one of the protein shakes I bring her. Nothing more was said. Five days later, I get a call from an outside mobile NP that my mom was severely dehydrated and had COVID - she asked me point blank what do I want to do? Have her taken to ER or keep her at the facility. She also said my mom was going to die from the dehydration before the COVID would take her. I was not only in shock but, livid as well. I totally understand.

I'm glad your best friend is a lawyer so you know what you'd be up against. Even if you did request the medical documentation from the facility itself, it will only be as good as what they actually documented. I did not file a lawsuit for negligence even though I had a lot of correspondence and notes of conversations. I felt like I wouldn't be able to handle the stress of it, we didn't have the money for the legal fees and I just felt it was a company against an individual - their word against my word type of thing. If my mom were to have died, I wouldn't have been able to handle a lawsuit while in the midst of grieving and handling all the other things that come with losing someone.

Although my mother survived, she's never been the same. I moved her to a new facility into their memory care unit but, she can't walk or dress herself anymore, she's lost 20+ pounds, wasn't eating or drinking much so I brought hospice on.

Once the facility allowed moving companies in and I retrieved all her stuff, that's when I sent an email to both the Regional Director in another state and a copy to the Administrator at the facility and I said everything I had wanted to say since April. I received a reply only from the Director five days later. I presume they were getting all their legal counsel in place before she replied. She asked if I would talk to her over the phone and I agreed. Also, she asked if I wanted to include the facility Administrator and I declined mainly because I've had many conversations with her since my mom moved there in 2015. I too was angry that the actual facility never apologized or take any accountability.

I did have the conversation with the Director and left it at that. I wanted them to know that they didn't pull a fast one on me if I were to have stayed silent. I had to do it on my mom's behalf. I contacted an Ombudsman for further advice. She said if I wasn't going to file a lawsuit, I should at least file a complaint with our state's Department of Health. I will be doing that in the near future.

You will be in my thoughts and prayers as you begin the grieving process.

I am so sorry for your grief.
In the case of an elder, no matter WHAT the circumstances, law suits will almost NEVER go forward. I am glad you have a lawyer friend as that person can explain to you the limits of malpractice recover, likely less than 250,000 in our country. There is also little recompense for an elder as the loss is considered one that would be bound to happen in any case. The best recovery in any law suit is a STILL LIVING but drastically impaired young person who could have been expected without this care to have had a long life and to have made a LOT OF MONEY, especially if they will need daily care on going life long, for recovery goes on in terms of money only in that circumstance, beyond the 250,000 (I assume you are in the USA).
No lawyer will take your case ON CONTINGENCY and any lawyer who would take it with you paying is likely a crook after your money. It is not worth the enormous time it takes for a law case to get 1/3 of 250,000 in the WORST CASE of malpractice.
Your Lawyer friend will be able to fill you in on all this, but almost always there is no case where any elder is concerned, and a Lawyer will not take it. Just very rarely there will be some small "go away" settlement in which you get a tiny bit of money to agree never to speak of this again. Again, that is RARE and the lawyer will get much of the money. This is why you see class actions going forward. The individuals get little in those suits too, but the lawyers do very well.
So discuss all this with your lawyer friend who will, I am pretty certain, assure you I am correct. If you doubt it, then visit a few lawyer who will explain it to you further.
If there has been an injury leading to death in your instance your best action to help others is to report it in writing to the reporting agency responsible for licensure of the home in your state.
As Handle on the Law (by the way he is on the radio and has lawyer referrals) always says "Marginal legal advice where I tell you you have NO CASE".

I am so sorry about the loss of your mother.

This very reason is why it is so hard for family's to have to place their loved one in a facility. We are not there to make sure they receive the absolute best of care. No one will ever admit otherwise.

Like you said, the communication with these facilities are horrible.

You do have a right to have it investigated.

Another thought:    in med mal suits on which I worked, a medical practitioner testified as to the malpractice.    Consider whether you'd be able to get someone to support your allegations.   Seriously.

Full Circle, I too am sorry for your loss, and for the less than ideal responses you received from the facility.   But to sue?  No, I see no grounds for suit, unless you want to expend the time and money (and risk being assessed with the legal fees for the NH's defense as well).

You do have a right to the records; ask your attorney friend to order them if you like, but be aware that the NH may "get its back up" and believe that you are intending to sue, and they won't be cooperative with you from then on, including answering any questions you may have.   You can order them yourself; be prepared to pay several hundred dollars for the records.

These are also questions you would need to ask yourself:

1.    How did any of the identified actions contribute to your mother's death, given that she already was in hospice?   How would your requests have changed the outcome, or even Mom's condition before her death?

2.    How does this facility's actions compare with those of other nursing homes?  At one time, an element of medical malpractice (medmal) suits was proving that treatment was not consistent with the standard of care (a major issue) in that particular state.   I haven't followed medmal laws since I retired, so I don't know if this is still a standard.

3.   When I worked in medmal law firms years ago, the best firms hired a doctor in a similar practice area (which would be hospice in this case) to review all the medical records, and opine on whether or not standards of care were met for your mother's condition, i.e., a hospice patient, with defined conditions leaving to death and consistent with the norm for that area.

4.    Ask your attorney friend to do some legal research on the standards for filing and sustaining a medmal action in your area.

5.   You stated that you don't want money; you want admissions of decline and negligent care.    Suits generally ask for monetary compensation; I don't recall any that asked for admissions or confessions.   I think filing a suit for this reason wouldn't be effective; the NH attorneys would probably file a Motion to Dismiss early on, and may well ask you to pay their attorney fees.  

In addition, what compensation or what do you want besides an admission?  Given the overwhelmingly challenging conditions at NHs these days, they're lucky they still have uninfected staff to care for patients.  

6.   I won't deny that you experienced frustration; but you might get farther by asking an Ombudsperson to become involved, and contact Medicare (or Medicaid if it was involved) and complain to them.   Medicare does do inspections, and might address some of your complaints generally.  

7.   Caring for terminal parents in this current situation can so easily be complicated by facilities with inadequate staff, or staff that become ill, or frustrated b/c they too are overworked and interact daily with high risk people.   It's challenging for everyone.   

8.   A totally alternate approach, which I would take, is to write a letter thanking them for what they did DO, and politely make recommendations that could be adopted in the future.

The old saying, which I can't remember now, is that being complimentary and helpful gets more results than presenting with outrage and anger, even if it is justified.   I think the saying is something about catching more flies with honey than with vinegar.

I hope your attorney friend helps guide you though this challenging time.  And I hope that you're eventually able to reach peace within yourself.

I'm so sorry for the loss of your mother, but honestly, nothing in your list of complaints indicates any malpractice that I can see. (And no, I'm not an attorney.)

Broken phones (did you bring a replacement for her?) and phone calls you didn't receive from the doctor (did you call him or just leave messages with the NH?) don't equate to leading to her death.

I'm also confused -- you said you connected with hospice the morning she died, yet you are enraged she died?

My mother was in a nursing home for seven months and my dad had been on their board of directors for 10 years. The CEO spoke at his funeral. I ended up moving her to a MC closer to me, and never have heard one word from them since, except for pitches for money. That's OK, though, because they're in the business of people coming and going all the time. I understand my mother was a customer, not a family member, and I'm not special to them either. I think you're expecting a lot to want condolences from them. They need to keep a certain distance emotionally, too.

I suggest you get the book "Healing After Loss," by Martha Hickman. You read just one page a day so it isn't overwhelming and hard to digest, and I've known many people who found it extremely helpful. A friend whose wife was killed in a car accident found it so helpful he bought a case of the books and asked that his church give one to each family they performed funerals for.

FullCircle I understand your anger much better now.

I'm so sorry that you went through the uncertainty, lack of responsivenss from the facility and sadness at your lack of efficacy at the end of your mom's life.

Was this a facility that was very affected by COVID? Not an excuse, but possible a reason that, if the were previously responsive and became less so.

Im going to make an assumption here. It is based on my experience with my mom in a NH for 4 1/2 years.

The facility actually gave her amazingly good care. But they were totally lousy at communicating with us.

If you will be reassured by seeing the care notes that your mom was being cared for, go ahead and requeat them.

I'm so sorry for the loss of your mom. (((hugs)))

Were I you, and I wasn't looking for a payday from a lawsuit, but rather some acknowledgement and apology, I would write down all the pertinent facts (much like you did here) in a letter and send copies to your local state representative. I would also CC the director of the facility, the owner of the facility, the State Ombudsman and perhaps your local news media.

There was recently a facility near me that changed owners from a not-for-profit to a for profit corporation, and the resident's families found the once-excellent care take a serious downward turn. Once the media got hold of the story, the local state representative stepped in. Then the state began to oversee the operations. As far as I know there were no lawsuits brought, the family members just wanted their LO's cared for.

I know. All that is true. I am upset that I knew she was declining and not well and she was not receiving proper care - not to save her but to make sure she was comfortable and well taken care of at the end.. I actually had connected with hospice the morning she died and was working to move her to another facility.

some If my issues are below. There are many more.

1. She moved rooms 3 weeks before she died And the phone was not working properly. I could call her but the phone was broken and she could not call out. I asked almost every day to have it fixed and they never did. It was hard for her to answer the phone sometimes if he wasn’t near her so we got into the routine that she called me every night after she was ready for bed - but after they moved her she could no longer do that.

2. I asked for the doctor to call me to provide an assessment in the beginning of her stay and then multiple times the last 3 weeks as I felt she was declining fast and the dr nor the head nurse EVER called me in the 6 weeks she was there. Not once did I ever talk to the doctor about how my mom was doing.

3. They allow 30 minute visits outside and I called to schedule one on aug 24th and they said due to vacations they couldn’t accommodate a visit until sept 15. I told them
multiple times I though she was not well and my brother who is out of state had not seen her since Christmas and wanted to see her sooner with him. They said nope, had to wait until the 15th and that she was fine - her baseline had not changed at all.

4. Every person that answered the main number was bombarded with my questions on how she was doing, did they see the decline I was seeing, did they notice the wet cough she developed or the fact that she couldn’t Walk anymore? Nope. Every person- except the pt who called me 3 days before she died said she was not declining and was totally fine.

6. The physical therapist who was wonderful called me 3 days before to tell me she was really declining, could no longer walk even with help and had developed a wet cough and perhaps had pneumonia or a uti. She was going to talk to the nursing staff to have doctor check in. Never head back from anyone.

I wanted to have her documents updated (Poa and health care) and asked if they could facilitate and notorize them. They fought that and said no and then agreed to haven her sign but couldn’t noterize. I asked if lawyer could come I with me to do that and they said no- it would have to wait until my visit on the 15th.

there are more.

i feel like I failed her. She was not able to do anything for herself those last 2 weeks and I was supposed to make sure she was taken care of and I wasn’t able to do that and I feel awful. She was sad and afraid and I wasn’t able to do enough.

she was rushed to the hospital and arrived with her O2 at 50% and full blown pneumonia. I’m not sure exact cod but it was not COVID related

I'm sorry for your loss and the added grief of being dissatisfied with her care. Your attorney friend can write the letter necessary for the nursing home to release your mother's records to her estate/next of kin.

FullCircle, I'm very sorry for the loss of your mother. What ultimately caused her death? Was it covid, or something else? Also, you don't say what state you're in and since laws can differ by state this is important info if you want crowd-sourced opinions. I had heard that there was legislation in process to protect nursing homes from covid-related lawsuits but don't know if that's gone anywhere. My MIL was in LTC, got covid, was so sick for 4 weeks that we had her other 2 sons fly in to "say goodbye" from an outside window and she was put on hospice. To everyone's amazement she recovered. But at one point there was 1 frantic nurse for 16 elderly covid patients as they lost staff to quarantine who tested positive, and the admin was struggling and working long hours to stay ahead of the impact. My point is that you probably should wait to consider legal action when the terrible sting of this loss has been tempered by the passage of some time so that you're making more objective decisions. I wish you comfort for your pain and peace in your heart as you move through this profound time in your life.

Almost 17 years ago I lost my Father to cancer and I thought the hospital hastened his death. He was only in for a short procedure ...and everything went wrong and they admitted him and ended up dying 30 days later...he was terminal but given 6 months. I thought 6 months meant 6 months... I called a lawyer and explained the situation...nothing they could do. I was looking for someone to blame...anyone...I was angry. Yes it hurts and you're mad...even if you could do something the pain will not go away that unfortunately takes time...I am sorry for your loss.

FullCircle: This is from May 2019:
"... My my mother is 84 and has been ‘dying’ for 5 years. She never been in great health and has never taken great care of herself and when she went into heart failure and had quadruple bypass 5 years ago I was certain this ‘was it’. I spent 2 months visiting her in the hospital almost every day, 4 months visiting her in rehab 3-5 days a week because I could not imagine her recovering and I wanted to have that time with her at ‘the end’.

Well, she recovered, moved into assisted living and she still chugging along 5 years later with end stage copd and CHF on O2 24/7 and so may trips to the hospital I lost track. Pulmonologist says there is literally nothing else he can give her - she is on every steroid and breathing treatment available (monthly close before insurance is over $2000 - but her phenomenal insurance pays all!) but she gets a respirating infection, they pump her full of more meds and she bounces back. Not to the level as before but the decline is painfully slow.

i love my mother and will be devastated when she goes but she’s now cranky and demanding and unable to have a true conversation with as she’s living 40 years in the past most days so I kind of feel like I’ve already ‘lost’ my mom.

all this to say - I get it. I have a husband, 3 children, a stressful corporate job and my own life and I’m increasing numb to the health scares and literally wait to get ‘the call’."

So, your mom had end stage COPD more than a year ago and had treatment after treatment. It sounds like her doctors and the facility were doing a pretty great job of keeping her alive, although she had little quality of life due to dementia.

I am sorry for your loss; as you predicted, you are devestated by her death. I'm not sure what you hope to gain by being enraged at the facility.

How were you informed if your mom's death? Did the facility call you? Was she on Hospice?

We were present at my moms death (pre COVID) and the nurse who was closest to my mom cried with us, but no one formally offered condolences. I don't think that that's done.

Be comforted by your good memoroes of your mom and grieve your loss in peace.