Legal considerations in nursing home wrongful death settlements include challenges in presenting the elements of the case and pursuing the claim through procedural rules and requirements. A favorable settlement award requires identifying legal considerations and addressing them appropriately.
Bobby Jones Law explains the legal considerations for a nursing home wrongful death settlement.
What are the legal considerations in nursing home wrongful death settlements?
Legal considerations are the issues, implications, and requirements that must be addressed to make a nursing home wrongful death settlement a success. Not every issue will apply in every case.
10 Legal Considerations for Nursing Home Wrongful Death Settlements
1. Evidence
Wrongful death nursing home settlements are the result of strong evidence. The nursing home isn’t going to agree to a full settlement if they think they’ll win at trial. They will calculate their risk in going to trial based on how strong the evidence is.
Building the evidence in a nursing home wrongful death case can be challenging. Often, evidence is in the hands of the nursing home—the party you’re hoping to hold liable.
You may need to work quickly to demand the preservation of evidence and file legal motions to enforce discovery. It may be necessary to take depositions to record testimony. Early and aggressive case building is a consideration that can put you in a position to settle a nursing home wrongful death claim.
2. Damages, including non-economic
Often, damages in a nursing home wrongful death claim are primarily non-economic. A wrongful death claim awards losses sustained by the beneficiaries. Compared to other wrongful death claims, the economic portion may be less because the beneficiaries are unlikely to have relied on the victim for economic support.
Non-economic losses to beneficiaries are likely significant—any loss of life is an extreme loss and deserving of justice. You may need to take special care to present the facts, explaining the suffering that the beneficiaries have endured, and detailing the appropriate amount of compensation.
3. Punitive damages and systemic problems
South Carolina allows for punitive damages in wrongful death cases. Note: The law in your state may be different.
Punitive damages are rarely awarded and are reserved for the most serious behavior. Proving that the nursing home had systemic problems may prove the reckless or willful conduct required to claim punitive damages. This can require significant factual investigation and extensive record gathering.
4. Naming of the correct entity or entities
Another important consideration in nursing home wrongful death settlements is naming the correct legal entity or entities as defendants. Nursing home facilities can be bought and sold. Corporate structures can be complex. You must determine which entities are responsible to name as liable.
5. Intentional harm, personal liability, and causes of action
The nursing home may try to disclaim liability for the actions of their employee. In South Carolina, an employer is liable for the acts of an employee when the employee is furthering the employer’s interests in the scope of their employment. They’re not responsible just because the person happens to be at work or even because the employee was on the job at the time the harm occurred.
The nursing home may say that they are not responsible for an intentional tort. However, you may dispute whether the act was an intentional tort. In addition, you may hold the nursing staff accountable for negligent operational practices and for failing to exercise control over an employee when it was foreseeable, possible, and appropriate.
It may be possible to sue someone in an individual capacity. However, they are unlikely to have the personal resources to provide the appropriate compensation. That makes proving facility liability an important consideration in wrongful death nursing home settlements.
6. South Carolina Tort Claims Act
Nursing homes are often government entities. The South Carolina Tort Claims Act may apply to a wrongful death settlement involving a nursing home. Legally, this can raise several legal considerations, including damage caps and a shorter statute of limitations.
7. Court approval
South Carolina requires court approval of wrongful death settlements. A state probate court, circuit court, or U.S. District Court must approve, even if the case is resolved by settlement. How to proceed depends on whether there is an action pending in court. A petition must include the basic facts, a summary of liability, terms, and several other requirements.
Evidentiary hearing for the settlement
The court will hold a hearing about the settlement. They will receive facts in evidence to evaluate whether to approve. A federal court may remand the case to a state court for the approval process.
8. Who can file, and who can accept a settlement?
Only the personal representative can file a wrongful death claim. And they’re the only ones who can agree to a settlement. This is true whether or not the personal representative is also a beneficiary.
9. Disbursement of funds
The party liable pays the personal representative. It’s up to the personal representative to distribute the funds to the beneficiaries. The personal representative must disburse funds to statutory beneficiaries as defined by law. They don’t get to choose who they think should get the proceeds.
10. Addressing tax liability of damages
Generally, wrongful death settlements are not taxed. There are some limited exceptions, and it’s important to understand the potential tax considerations of a nursing home wrongful death settlement.
How an attorney can help
Success in a nursing home wrongful death settlement requires identifying issues and doing so early enough to address them. Missing even a single legal consideration can be fatal to a claim.
An attorney identifies important considerations and makes sure that you don’t focus on the wrong ones. They address issues and prioritize your case, creating a legal strategy for your success.
Talk to a lawyer
Robert “Bobby” Jones is an attorney experienced in nursing home wrongful death settlements. He knows what legal considerations matter, and he’ll fight aggressively for you. Call or message us now to talk to a lawyer and start your case.
