Mother in AL as of March 2013 with COPD as her primary diagnosis. She passed away at the end of May 2013. During her time at the AL facility they failed to provide a newly prescribed medication, a diuretic, to her despite the medication being on med cart, for 10 days and ran out of 1 of her nebulizer medications for 5 days which was to work in conjunction with one of her other nebulizer treatments. They claim no responsibility for her death and unfortunately because she was cremated an autopsy was not conducted. My sister and I are trying to sue them for negligence only not wrongful death. Not so much for the money as in an effort to get this company to fulfill their responsibility of providing the standard of care we were expecting as per the contract to others who choose this facility for their loved one.
Now our lawyer is pushing us to settle out of court because it is the easier way and that we won't get 'much' out of this lawsuit anyways. I feel like he is just being lazy and wanting money rather than working for us. Again I could care less about the money but in today's environment the only time a company even considers making changes to their existing practices is if there is a cost to their poor practices already in place. I fail to see how just settling will make a change. Especially since the law allows for up to 250,000 when negligence is proven. The courts could donate every dime to the COPD Foundation and I will be happy as a clam. I just do not want to walk away from this with the parent company getting nothing less than a slap on the wrist and nothing changes. I know this facility is responsible for the poor health of many elders who entered with health conditions for which the facility has been negligent just as they were with my mother and has caused a decline in health and/or death. Proving it seems to be the problem. Laws in this state, Texas, are not written to protect the consumer but to protect the corporations that are building their financial futures on elderly and those in the wings, like myself, that they can prey on. Knowing that as elderly it is easy to explain away anyone's death with 'Oh they were so sick and this was bound to happen' approach. Please tell me I am not going crazy. We may end up walking away with nothing but the memory of how we selected what we thought was the better facility for her needs only to find out that indeed it was nothing short of a way station with poorly trained staff and insensitive administrators. DADS was called in and did cite the facility for 3 violations of care concerning my mother. Yet my lawyer does not seem to believe that this is enough to force them to pay the max. I just don't know what to do anymore and I am on my last straw. Please advise or provide feedback. Thank you for reading this.

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May I share some insight from how your attorney is probably viewing the situation?

1. Your mother was in AL, not a subacute facility. I can't claim familiarity with the level of medical administration that would be different, but I'm wondering what the admission papers addressed in terms of their responsibility to administer meds and to avoid the other mistakes they made. There may be an exclusionary clause in the admissions papers.

I wouldn't disagree that the med administration issue was NOTt handled properly. The question is whether it rises to the legal standard of negligence.

I'm wondering also how many meetings the family had to challenge the nursing home's inactions, as well as document these grievances.

2. Depending on your mother's stage of COPD, the med mistakes may or may not have aggravated her condition. Only a pulmonary physician could provide an evaluation of this.

3. Despite the apparent omissions, someone allowed her to remain in this particular facility, and apparently didn't seek another place with a more exacting standard of care.

4. Your mother may have needed a higher level of care and more medical attention.

5. If your attorney is an experienced medical malpractice attorney, he/she likely would have obtained your mother's records and sent them to a qualified pulmonologist for review, to determine if there was negligence, and to determine if that person or another qualified pulmonologist would testify at trial, a necessity to prove negligence.

6. Lacking that medical support, an experienced med/mal attorney would likely try to get as much of a settlement as possible WITHOUT going to trial, in which case any verdict might be "no caused", i.e., no cause for action, indicating that the jury did not find negligence existed.

In that case, the plaintiff's family would get nothing. If the family had agreed to settle, there would be at least some compensation and some satisfaction of having pursued justice.

7. However, and this is a major consideration, is the age of the individual who died. Actuarial data are used to calculate losses in negligence. Sadly, an individual who is older and has less of a life span than someone decades younger would not be considered to have lost as much. Someone 20 or 30 years old who died under similar circumstances would be seen in a different light than someone in his/her 80s or 90s.

8. The med/mal attorneys I worked for would not plan on taking a suit to trial if they couldn't find a doctor to substantiate the charges; it was an absolute necessity. Some attorneys would take a suit with the idea of getting a nuisance settlement from the med/mal insurer. Some of the more prominent ones wouldn't even consider taking a suit even if a settlement was possible.

9. The field of med/mal litigation changed while I was working in it, and that was decades ago. In Michigan, tort reform changed the standards for suits, and if I recall correctly, mandated that a physician testify as to the negligence. Lacking a physician to support that conclusion literally killed any chance of damages awards through litigation.

Believe me, your attorney is likely not being lazy as he/she won't get anything near what could be his/her share of a judgment award. He/she's telling you that there isn't a strong case.

You write that you have knowledge of poor care by this facility. Were you aware of this when your mother was placed there? Have you contacted any ombudsperson agencies that address poor care in facilities? Have you written to Medicare to complain of the standards of care?

I'm not blaming you, not at all, just trying to point out the hard cold facts of these kinds of suits. And any facility could and probably would throw back at you any action or inaction that was or wasn't taken to advise them how dissatisfied you were and that you wanted better medical management.

These won't bring your mother back and are unfortunately sometimes slow methods of achieving change, but they might be more effective in the long run, as will hitting the parent company in the pocketbook by providing information to ombudsperson agencies which can advise people of poor practices such as those you encountered.

When my mother first was in rehab for a broken leg, one of the facilities suggested by the hospital discharge planner was one which for whatever reason at that time wasn't appealing. Later I learned that the reputation was that patients who went in likely didn't come out except to head to the morgue. I found that out through an ombudsperson agency.

Later another discharge person recommended the same facility, and I challenged her on recommending one with such a bad reputation. She acknowledge it - she actually was aware of it's reputation, yet she was still recommending it!

I couldn't help wondering if there were forces at work that were well beyond the staff and my level of involvement.

I don't know how this would be handled, but you can push, perhaps through Medicare, for more inspections and review of medical records to try to correct the negligent care. Medicare does rate nursing homes. You can check, search for nursing home ratings, and provide information to Medicare.

Just be careful what you say so that the facility and its parent company don't come after you for libel or slander actions.

I am so sorry for your loss; I'm sure it must be difficult to believe that your mother was neglected and that your attorney is not providing you with the best representation possible. Sometimes it seems as though the entities that are available to help are doing anythingi but that.

But I would ask your attorney specifically about the issues I raised, i.e., whether or not a physician would testify to negligence, and whether Texas statutes require that testimony in order to sustain a med/mal case.

I hope that in time you're able to find more calm and peace in your life.
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File a complaint and look for an advocate at a federal/state elder or health agency. They may be able to correct the situation. I can't tell if DADS came in as a normal procedure and you specifically filed a complaint. Make sure you file a complaint. Often you will find someone at the government agency who can help with the filing so it makes the most impact. I would also inform the attorney that you are filing the complaint. This might motivate the attorney for a better settlement and to make more noise. I would not accept any settlement until the federal/state complaint process is complete. It is amazing how a government agency snooping around a company motivates them to make changes and settle the matter to the consumer's satisfaction.
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I would listen to my lawyer and seriously consider his/her advice.
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