Bucking the Trend-Obtaining A Substantial Recovery In Case Involving The Elderly Client
Edward R. Kennett, Esquire

One of the most important decisions made by the personal injury attorney is the decision to accept a case and invest time and money towards its resolution. Many firms tend to reject cases involving the elderly due to concerns about damages or concerns that the client may pass away before the case goes to trial, thereby further reducing recoverable damages. But experience, creative thinking and exhaustive discovery can turn a case which is normally passed over into an outstanding case. And wrongdoers are held responsible for injuring the client who has been historically denied access to the justice system.

Bill Atlee and Ted Kennett recently obtained a substantial settlement in a case involving an elderly gentlemen. While the amount of the settlement is confidential, it dwarfs many of the settlements and verdicts obtained on behalf of younger people who have been catastrophically injured and have provable lost wages and lost earning capacity. The plaintiff was 77 when he passed away in early 2001. He had been a resident at a local assisted living facility. Due to systemic neglect within the personal care home, he developed multiple bed sores (decubitus ulcers), severe contractures and suffered from malnutrition. Although he passed away before trial, we were able to develop evidence which established his injuries were a result of misrepresentations by the home of its training and abilities. We also learned that many of the pertinent documents had been altered. Our investigation even uncovered misrepresentation to the state regulatory agencies. With such heinous wrongdoing, it is evident why the defendant’s sought to settle this case for such a significant amount of money.

Cases involving the elderly should not be dismissed simply because it does not appear at first glance the injuries suffered were not catastrophic. Ted Kennett also recently obtained a substantial settlement against a local nursing home for a client who fell out of bed and cut her face. Our investigation revealed that the home failed to implement its own fall precautions despite having identified her as a fall risk. As the case progressed, we discovered the fall precautions had not been implemented because there were severe systemic problems such as untrained, unqualified staff and inconsistent policies and procedures. These errors turned a case which typically would not have been accepted by an attorney into a case where we were able to hold wrongdoers responsible and ensure that future residents are safer.

It is anticipated that the number of people requiring assistance, in either nursing homes or personal care facilities, will increase 51% over the next twenty years. These facilities are heavily regulated by a wide variety of federal and state agencies. Evaluation of potential cases requires in-depth knowledge of the applicable regulations. It also requires an ability to unravel the effect of neglect from the sequelae of underlying disease processes. Proving that the errors and omissions are related to the deteriorated health status and life expectancy of the resident typically requires detailed, time consuming, and medically complicated analysis.

Development of meaningful theories of liability requires experience with the behind-the-scenes realities of nursing homes and personal care facilities. Obtaining the pertinent information requires time consuming, expensive discovery. We have successfully handled a number of cases involving clients that, given the typical evaluation and litigation strategies, may have either been passed over or who would not have recovered fully. Aren’t elderly victims of neglect and bad care entitled to just as much justice as younger victims of negligence?
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