We Stop Financial Abuse, Sue Nursing Homes & Contest Wills

Can an Incompetent Patient Be Awarded Pain and Suffering?

Can an Incompetent Patient Be Awarded Pain and Suffering?

What Rights Do Nursing Home Patients Have to Be Free from Pain and Suffering?

I never really gave this question much thought before. In our minds, no one should needlessly suffer. Simply because a loved one has Alzheimer’s and doesn’t understand her surroundings doesn’t mean she doesn’t feel pain. But a state appeals court in New York has now cast doubt on the issue.

Earlier this month a four judge appellate panel in New York tossed $2.5 million of damages for pain and suffering. That portion of the award formed the bulk of the $3 million awarded to a nursing home patient. The case will now go back to the jury for recalculation of damages.

In 2011, Frederick Smith was a patient at a nursing home operated by Northern Manhattan Nursing Home, Inc. On the morning of October 22nd, Smith was found unresponsive in his room. Staff at the nursing home didn’t have him transferred to a hospital until that evening. By then he had suffered a brain injury and later died.

In 2019, a jury awarded Smith’s wife approximately $3 million of which $2.5 million was for pain and suffering. The nursing home appealed. In an unusually short opinion, the appeals court tossed that portion of the award tied to pain and suffering. In slashing the award, the court said,

“The court should not have allowed the jury to award damages for pain and suffering without first determining that the decedent experienced some level of cognitive awareness following the injury…

“While a jury could reasonably have concluded based on the weight of the credible evidence that the decedent had the requisite cognitive awareness, this is not the only reasonable conclusion that the jury could have drawn. By omitting any discussion of ‘consciousness’ from its jury charge or the verdict sheet, the court essentially, and improperly, took this issue away from the jury.”

That the court struck the pain and suffering award doesn’t mean that Smith’s wife still won’t receive that amount. The court merely indicated that the jury had to consider Smith’s cognitive awareness. That could mean the jury could award less.

The decision is certainly a disappointment but is not the law of the land. It does bind courts in New York City, however. Whether you are young or old or whether you are of sound mind or not should not matter. No one should needlessly suffer.

The Legal Assault on Nursing Home Patient Rights

In recent years there has been an ongoing assault on the rights of nursing home residents. Our loved ones should be safe and secure in their last years. But the powerful nursing home lobby has other ideas.

First there was the growing wave of nursing homes that bury lawsuit waivers in their contracts. These provisions deny patients the right to have their concerns heard in court. Instead they require residents suffering from abuse and medical neglect into private arbitration before arbitration panels friendly to the facility.

Shortly after the COVID-19 pandemic began, we saw nursing homes lobby for powerful lawsuit immunity measures. In some states, these new immunity measures go well beyond COVID cases and even extend to immunity from criminal prosecution.

The New York case involving Fred Smith appears to be evidence of a new attack. Nursing homes want residents that might not fully comprehend their surroundings to get less for their suffering.

Now more than ever it is important to have experienced lawyers to represent you or your loved one in a fight with nursing homes. No matter their age or mental ability, nursing home residents are human beings with all the rights that come with that. Bed sores, abuse, falls, medication mishaps -- all of these things are easily prevented with good policies, proper training, and staff who care about following the rules. 

To learn more, visit our nursing home abuse claims page. Consultations are always free, without obligation and confidential. 

Ready to see if you have a case? Contact us online, by email [hidden email] or call us at 833.201.1555 . We or someone in our network will respond immediately. 

 

Image courtesy of Claudia van Zyl on Unsplash

Share

Related topics: dementia (3) | elder abuse (25) | liability shield (7) | neglect (67) | nursing home abuse (51) | nursing home abuse lawyers (43) | nursing home neglect (59) | patient abuse (18) | substandard care (67)


You might also like: