Maryland Nursing Home Wrongful Death and Survivorship Lawsuits

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The United States Centers for Disease Control and Prevention ("CDC") has recognized that as the American population grows older, more and more individuals become vulnerable and dependent upon others to meet their most basis needs.  According to the CDC, a 1996 study found that more than 500,000 people age 60 or older were victims of neglect or abuse during a one-year period.  

Sadly, nursing home residents are all too often killed as a result of nursing home neglect or abuse.  For instance, nursing home residents may develop infected stage 3 or infected stage 4 bedsores (also known as pressure sores or decubitus ulcers), experience falls, dehydration, malnutrition, or medication errors/prescription mistakes resulting in painful and life-threatening injuries. 

Under Maryland law, when a nursing home resident experiences death secondary to nursing home negligence, two causes of action arise: (1) a wrongful death claim; and (2) a survivorship claim.

First, the wrongful death claim is a statutory cause of action governed by Sections 3-901 et seq. of the Maryland Courts and Judicial Proceeding Article of the Maryland Annotated Code.  The Maryland Wrongful Death Statute makes clear that there can only be "one action . . . in respect to the death of a person."  See Section 3-904(f).  Section 3-904 sets forth the categories of individuals who are wrongful death beneficiaries.  Generally, the decedent's surviving parents, spouse and surviving biological or legally adopted children are wrongful death beneficiaries who must be included in a claim for wrongful death.  Because there can only be one cause of action for wrongful death, it is required that all wrongful death beneficiaries be joined as plaintiffs and named in the lawsuit.

The wrongful death claim seeks to collect damages suffered by the wrongful death beneficiaries in their own right as a result of losing their loved one.  Wrongful death beneficiaries are generally entitled to seek monetary recovery for their emotional pain and suffering experienced secondary to the loss of their family member.  These damages are subject to Maryland's Noneconomic Damages Cap.

The second cause of action arising following the death of a nursing home resident is the survivorship claim.  This claim is brought on behalf of the decedent's estate by the personal representative of the estate.  In situations where the decedent had a will, the personal representative is named in the will.  In the event the nursing home resident dies without a will (also known as dying intestate), it may be necessary to file a Petition for a Small Estate for litigation purposes in the Orphan's Court of the Maryland County where the decedent resided at the time of his or her death in order to have a personal representative appointed.

The survivorship claim seeks to recover for certain categories of the decedent's individual damages that could have been recovered if he or she had survived, including their conscious pain and suffering resulting from the nursing home neglect (subject to Maryland's Noneconomic Damages Cap), medical bills resulting from the negligence, and funeral bills.  In essence, the personal representative of the estate steps into the shoes of the decedent in order to assert his or her claims of injury and damages.

Importantly, the personal representative does not personally recover for these claims of survivorship damages.  Rather, any monies recovered pursuant to the survivorship action must be deposited into the bank account of the decedent's Estate and distributed in accordance with his or her will (or, if there is no will, distribution is made in accordance with Maryland's laws of intestacy contained in Title 3 of the Trusts and Estates Article of the Maryland Annotated Code). 

Nursing home abuse and negligence lawsuits are vigorously defended by the nursing home and their insurance company and attorneys.  Ultimately, successful recovery in these cases require that the surviving family members and wrongful death beneficiaries unite and work together in cooperation as a team in the pursuit of the case so that the underlying circumstances can be investigated promptly, and then litigated aggressively by the lawyers representing the family.    

Please feel free to contact the nursing home neglect attorneys at Dever & Feldstein, LLC at (888) 825-9119 for a free consultation if you believe that a family member or loved one has sustained serious injury or wrongful death as a result of bedsores (also known as pressure sores or decubitus ulcers), nursing home falls, dehydration/malnutrition, medication error/prescription mistake, elder abuse or elder neglect.

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About this Entry

This page contains a single entry by David Feldstein published on August 10, 2009 8:41 AM.

Preventing the Fatal Consequences of Nursing Home Elopement and Wandering Episodes was the previous entry in this blog.

Nursing Home Bed Sores / Pressure Ulcers / Decubitus Ulcers -- Important Findings of the United States Centers for Disease Control and Prevention is the next entry in this blog.

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