Filing a wrongful death claim against a nursing home is unlike other legal actions regarding the death of a loved one. Many times the necessary evidence is not apparent to anyone, and the scenario could have been one of abuse before the fact if no one was around at the time. Nursing home company officials are trained in how to avoid being sued regarding negligent care, and they cover up their activity as much as they can. Not only could there be a potential wrongful death claim, but there could also be a personal injury abuse claim after all evidence is submitted to the court. Additionally, the recent health emergency during the past two years gave the nursing facilities an even better opportunity to provide substandard care that could have contributed to the death of a resident simply because no one could come to visit. And the statute of limitations in North Carolina is two years for wrongful death. These can all present problems largely due to the fact that it is very difficult to investigate the case personally. That problem can stop when wrongful death lawyers get involved.
Who May File a Wrongful Death Claim
The first step in initiating a wrongful death action is determining who is given standing to file. North Carolina state law only allows for a personal representative of the victim’s estate to file the claim in court, which can be either an appointed individual or a member of the family with a specific order of succession. This is typically a spouse, but not always in a nursing home case. Many victims are elderly and their spouse has already passed. A personal representative may be stated in a valid will, which will take priority in the standing decision. Children of the decedent or the next closest kin may be allowed standing under certain conditions if the decedent passes intestate, or without a will. Wrongful death cases are not part of any personal injury case in North Carolina, and all proceeds are the property of the family. The decedent’s estate is a completely different legal matter.
Performing an Investigation
All nursing homes and skilled facilities are inspected on a regular basis by the state department of health. However, this is done on a schedule, and company management personnel know when they will be there, which means they can prepare beforehand and present a good showing when state officials arrive. What they may do when the state is not there is the problem. Additionally, residents are not always capable of communicating their issues with the staff regarding treatment and conditions. Family members are limited in what they can do, but experienced wrongful death lawyers can perform a professional investigation as court officers and request records that could be material to a wrongful death action as well as an abuse case before the ultimate death.
While the novice personal representative or family member can be obstructed when attempting to obtain evidence, wrongful death lawyers can contact the nursing home immediately with a spoliation letter and file the claim at the same time while waiting for a response. Wrongful death can happen for a wide variety of reasons. Evidence such as medical dispensation records and state hygiene reports can be supportive of wrongful death claims depending on how the victim died. Exact causation could be difficult to establish, but “proximate” cause can still apply as evidence. Details matter in wrongful death claims and nursing homes must be kept honest in the evidence-gathering process. Wrongful death lawyers understand what to expect from nursing home companies, and even an unwillingness to cooperate can be a central part of the case record.
Going to Court
Taking a wrongful death case to court is different from a personal injury case. Plaintiff’s legal counsel must demonstrate to the court that there was a duty of care and the respondent failed in that duty. Many times a nursing home abuse case stems from a failure to act as much as acting with negligence. Toxicology reports and patient records must be recorded in a timely fashion, and failure to meet the schedule can be solid material evidence in proving the case. Presenting a scenario regarding what was transpiring up until the death is vital to establishing a valid case, which is exactly what wrongful death lawyers are trained to do when a case goes to trial. Gross negligence situations can even result in punitive damages in addition to wrongful death compensation, but these damages must be awarded by a sympathetic jury following a successful trial.
Contact Our Office Immediately
Time is of the essence in any wrongful death case. Not only are there time limitations regarding filing, but evidence can fade fast and be difficult to obtain for family members and personal representatives. Our professional wrongful death lawyers know the process, and they can build a case and initiate the claim in short order. Call us today and let us put our experience to work for you.
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Other reading on this topic –
- How, When, and Where To File A Wrongful Death Case in North Carolina
- Wrongful Death Claims Lawyer Discusses Types Of Damages Available