The Auburn Citizen recently reported on a Cayuga County Nursing Home Negligence case, and that’s my topic for today.
At first blush, it seems like a compelling case. The nursing home’s negligence is clear cut. So clear cut that when the State Department of Health cited the Home with violations, the Home almost immediately paid the $12,000 fine without protest. And the resulting injury was severe; death! And the nursing home has been sued. But even though the negligence is clear, and the injury severe, I may have declined to take this Auburn New York nursing home negligence wrongful death case. Why?
Glad you asked. First, a few facts. The nursing home nurses gave this 94-year-old resident (I’ll call her “the victim”) the wrong medication. The mix-up happened because two drugs’ names – metolazone and methimazole – have many letters in common. But in fact they were nothing alike; one would help treat this woman’s ailments and the other would kill her. (New York prescriptions errors like this one are, unfortunately, all too common). The mistake started when a pharmacy (which has also been sued) entered the order incorrectly, but the nurses failed to detect the mistake and gave the victim this wrong drug repeatedly.
During 18 days, the victim developed symptoms that should have tipped off the nurses that something was amiss; she developed an inflamed large intestine and became wane and dehydrated and then suffered an “unresponsive episode”. The victim eventually died of heart problems from kidney failure aggravated by the medication.
Sounds like a great case, right? So why might this Central New York wrongful death lawyer have rejected the case?
The problem is not the facts of the case, which are compelling, but rather New York wrongful death law. Unlike the law in almost all other States, New York wrongful death law does not allow for compensation for the grief of family members. The law allows only for “economic” loss, which means funeral expenses and any loss of economic support to close family members (spouse and children). But when you are 94 and in a nursing home, you aren’t supporting anyone, and therefore you have no compensable loss under New York wrongful death law, except perhaps for some funeral expenses.
The only way this case makes economic sense to bring is if the victim endured, before she died, “conscious pain and suffering” as a result of the prescription error. If she did, her estate can claim compensation for it. From the newspaper article I have read, it seems there might be a problem proving that the patient endured any conscious pain and suffering. But I could be wrong. I would need to review the medical records and talk to the family members and other witnesses to find out.
My point is that New York wrongful death law often results in a travesty of justice for elderly victims of medical malpractice and their families. Negligent and careless doctors and nurses can almost literally “get away with murder” as long as the patient experiences no conscious pain and suffering. Fair-minded people have been lobbying Albany for years to change the law, but the insurance and doctor lobby has pushed back all assaults on this horrendous law. Maybe one day justice will prevail . . . .. Let’s hope so.
Syracuse Malpractice Lawyer: Nursing Home Neglect and Maplractice Is Pandemic, As Demonstrated by Recent Fines Issued to Syracuse Nursing Homes.Mike Bersani
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Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyer Michaels & Smolak, P.C.