It would seem to make perfect sense, if someone abuses an elderly patient that is placed in his or her care, it is prudent to bring a lawsuit against this person and/or her employer. Despite the fact that nursing home abuse is on the rise and the fact that an increasing number of people are speaking out against it, it might be difficult to pursue an elder abuse lawsuit in the event that the patient passes away depending on the state you would file in.
The case that is forcing change
The physical and sexual assaults of 15 residents in an Albert Lea nursing home back in 2008 are one of the best examples of such a case – and serves as a prompt for a change in state law. According to the criminal complaint, the defendants’ taunted residents, groped their breasts and genitals, poked them, and even spat in residents’ mouths. Charges were brought against two employees for failing to report suspected maltreatment, disorderly conduct, abuse of a vulnerable adult with sexual contact, and abuse of a vulnerable adult by a caregiver (all gross misdemeanors).
As the victims and family members filed lawsuits against the nursing assistants and the nursing home owner to seek justice for the mistreatment of their loved ones, the civil cases in Minnesota ended up being dismissed by October 2011. The reason for it was that the victims had passed away.
The problem with continuing prosecution is ‘Minnesota’s Survival Law’. This law requires that a personal injury case be dismissed if the victim dies of unrelated causes. The Albert Lea case and the fact that Minnesota is one of only four states with such a legal requirement are clear indicators that something needs to change.
The strange argument against the law
Just last year during the last day of session of the Minnesota Senate, a bill designed to eliminate the Survival Law was defeated. Part of the reason behind this is that both the Minnesota Hospital Association and Minnesota Insurance Federation lobbied against it.
These groups argue that Minnesota law is intended to compensate the victim of the injury or mistreatment, not the family members. The vice president of public affairs with the Insurance Federation of Minnesota – Mark Kulda – even went so far as to suggest that the damage was to the people themselves and not to the families.
What Mr. Kulda seems to forget is that a lawsuit is not necessarily about the damages. It is about holding people accountable for their actions. We would not let someone walk away from a burglary if the victim just happened to be involved in an unrelated car accident three weeks later. Why would we accept this when it comes to elder abuse?
Why a change is necessary
The truth is that accountability has to be in place. While a statute of limitations is one thing, it is unreasonable to put such a limit on pursuing elder abuse lawsuits. Considering the age and fragility of many of the victims, it is unethical to make it impossible to hold those parties responsible accountable for their actions.