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Mark Bello
Mark Bello
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Wrongful Death Lawsuit Settles with Assisted Living Facility, but will Justice be served?

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The daughter of a woman who died after a fall at a Williamsburg assisted living center settled a wrongful death lawsuit for $300,000 in damages. Whether she will receive the settlement is unknown.

An 87-year-old resident was alone in her room on Aug. 12, 2012. Somehow, she fell from her wheelchair, hitting her head on the floor. An employee of the facility said she heard distressed sounds from the woman’s room and found her on the floor with her head bleeding and wheelchair on top of her, according to court documents. Eleven days later, the resident died from complications of a subdural hematoma.

A wrongful death and medical malpractice lawsuit was originally filed in July 2014, naming the resident’s doctor and his employer as defendants, as well. In February 2016, the case was non-suited, meaning the plaintiff agreed to dismiss the case, while maintaining the right to refile it at any time. The case was refiled two months later, but the plaintiff ultimately dropped claims against the doctor and his employer and the case went to trial solely against the nursing home.

The plaintiff alleged that the senior living facility and its employees did not provide adequate care to her mother after the fall; they did not institute adequate falls prevention measures, did not notify her of the incident soon enough, and did not send her mother to the emergency department in a timely manner. The defendant, however, claimed that the plaintiff did not approve or authorize her mother to be sent to the hospital until the day after her fall, refused recommended treatment for her mother, and signed do not intubate and do not resuscitate orders for her mother.

The defense attorney withdrew from the case in December 2016, citing the facility’s lack of insurance and financial difficulties. Court documents stated that the owner and director of the nursing home would represent the facility in court.

The case went to trial on May 1st. Following expert testimony from a neurological surgeon and a registered nurse, a judge that the nursing home was negligent and awarded the plaintiff $300,000. The surgeon said that the scalp laceration was still bleeding 24 hours after the fall, evidence of a serious blow to the head from the fall. The nurse stated that the resident was also on a blood thinner that was not properly monitored, resulting in a heightened risk for bleeding in the head of brain following an injury. “Any prudent nurse presented with an unwitnessed fall and a possible head injury on [a blood thinner] would send the patient to an emergency room immediately following the fall,” she testified. “Time is of the essence.” The nurse also noted that she doubted the facility met assisted living standards of care for the resident and, further, failed to properly assess her fall risk. Testimony revealed that this resident had fallen nine times between November 2011 and August 2012 while at the nursing home and seven of those falls were in the last four months of her life.

Will justice be served? What most Virginian’s may not realize is that assisted living facilities are not required to carry liability insurance. Some facilities carry no insurance at all, while others are drastically underinsured. Until recently Virginia had no obligation to even tell residents and their families that they were uninsured. Furthermore, a recent news report stated that the facility is likely to file bankruptcy which may also deny justice to the plaintiff.

It is not uncommon for corporate wrongdoers to seek bankruptcy protection after a lawsuit. There have been many cases won by victims of nursing home abuse and neglect who are unable to receive the awards because the facilities had no assets and insufficient insurance coverage. In situations where the damages exceed insurance limits (or insurance limits are unreasonably low), with assets tied up in bankruptcy court for who knows how long, victims are left with taking these limited damages or facing the real possibility of seeing nothing, their claims discharged in a bankruptcy proceeding.

A bankruptcy filing will temporarily “stay” any lawsuits and prevent any payments/restitution from being made. If the facility goes through reorganization, there is a strong possibility that the bankruptcy court will liquidate all claims against them so they can come out of bankruptcy with a fresh start. In the meantime, the plaintiff will continue to wait for justice – justice which may never come. In essence, the whole bankruptcy-insurance scheme becomes the defendants’ way to bilk innocent victims.

Rights are being limited and sacrificed on the altar of corporate profit, all over the country. We all need to stand up to corporations that have put profits over safety; those that devastate families nationwide due to negligence and then try to circumvent justice and avoid responsibility.

If anything comes from this case to assist others in similar circumstances, let it be this: Before placing your loved one in a nursing home or assisted living facility, make certain that the facility is adequate insured and has assets that suggest financial responsibility. If it has neither, find another facility.

Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company and author of the legal thriller, Betrayal of Faith