What is a Georgia nursing home wrongful death claim? The term ‘wrongful death’ means the claims brought by family members against the party responsible for causing a death. But, who holds the claim, when can the claim be brought, and can families bring wrongful death claims against nursing homes? In this week’s episode, we explore wrongful death lawsuits against Georgia nursing homes.
Typically our nursing home cases unfortunately often involve the death of the resident as a result of the negligence of the nursing home. So in the state of Georgia, there’s essentially going to be two different claims that are brought sometimes with two different plaintiffs. The first claim is a claim brought by the estate of the resident. We talked last episode a little bit about the idea that an estate exists after a person passes in order to wind down that person’s affairs, so debts are paid from the estate, assets are given to whatever beneficiaries, but also a component of having an estate after one has passed is to make claims that should be brought for personal injury on behalf of the person who has passed.
So the estate, even though the person has passed, the estate acts as that person who can still bring claims for personal injury. So in a, let’s say for example, pressure injury case, even if the person has passed because of their pressure ulcers, their estate still brings that claim for whatever the recovery would be, so for the pain and suffering of the pressure ulcer injuries up until death, any medical bills, that type of thing. So the estate in a typical nursing home case involving death, the estate brings a personal injury component, a personal injury claim based on negligence for the injury and the pain and suffering and the medical bills involved in that. So that’s what the estate does.
Georgia through statute also allows for another claim and that’s the wrongful death claim. A wrongful death claim unlike the personal injury claim is not held by the estate. Under statute, it is held by individuals other than the estate, typically a spouse. And in that claim, in that cause of action, you are essentially asking the court for what’s called the full value of life. You want to be compensated for the full value, the life of that resident, and we’ll get into that in a minute, but there’s at the end of the day the wrongful death claim is created by statute. It is a claim that is held, meaning it can be brought not by the person that has passed but by that individual’s next of kin under the statute. You’re asking the court to compensate you not for medical bills, not for pain and suffering but for the full value of life, and we’ll get into that. So that’s what a wrongful death claim is as opposed to any other type of claim like negligence or what have you.
So let’s get into that a little bit. Who is actually entitled to bring a wrongful death claim in Georgia? So again, not to get too esoteric, not to get too legal wonky because I know that most of our listeners are not attorneys, but the claim for negligence typically arises from the common law. Wrongful death arises from a statute created by our assembly, so there’s not a lot of wiggle room with it. But essentially the statute says if someone has passed, then the holders who have the right to sue for wrongful death are going to be the spouse or the children. Typically it’s either spouse or child. If there are both, then typically the spouse is going to be the one who does it. If there is no spouse but a child and there’s multiple children, then all the children hold the claim, but typically only one child will be the representative plaintiff in the case.
But at the end of the day, it’s spouse or child and sometimes it can become, I don’t know, a sore subject for certain people because maybe there is a child involved – there’s no spouse but there’s a child who’s a surviving child, but maybe a cousin was the one who was the primary caregiver. Maybe an aunt or an uncle was the primary caregiver and they did all the work when the individual was alive and they feel they’re in a better position to bring the claim for wrongful death. Unfortunately the law will not allow someone other than the spouse or the child to bring that claim except under exceptional circumstances. And it’s a sad fact sometimes. We do get those calls where, well the son hadn’t seen the resident in 25 years, but they have to be the plaintiff because that’s just how the statute works.
So what are some of those exceptions to the rule that the surviving spouse or the surviving child has to be the one who brings the claim, who is the holder of the claim? Well the first exception is there are certain circumstances in which the grandchild can bring the claim for wrongful death, and that only happens in one circumstance, and that is when a child who is entitled to bring the wrongful death claim in fact does so, does file the suit for wrongful death, but then he or she himself passes away. So the child brings the lawsuit and then subsequently dies. That wrongful death claim then automatically goes to that person’s grandchild – I’m sorry, that person’s child, a.k.a. the grandchild of the resident. Hope that makes sense. Maybe I can draw a diagram. But the child of the resident dies while bringing the claim, then the grandchild of the resident can bring the claim in the child’s name instead. So that’s the first circumstance.
The law does allow a wrongful death claim to be brought where there is no spouse, surviving spouse, there is no surviving child. In that instance, then the estate would technically be allowed to bring the claim for wrongful death.
We had talked about earlier that you are asking the jury to compensate you, the holder of the claim, for the full value of the life of the deceased resident. So a couple of cases have highlighted what this means. The full value of the life is from the perspective of the resident that has died, not from the spouse or the child. It is the full value – what is the value of that person’s remaining life from their perspective, not from your perspective of having lost that person. It’s not from the spouse or the child’s perspective. It’s from the resident’s perspective. And so that will have two components to it.
The first component is an economic component in the wrongful death claim. In a typical nursing home abuse case, there is no economic component. An economic component would be like lost wages. So if a parent dies, the minor child can get lost wages in a wrongful death claim, for example. But typically the nursing home resident has long since stopped generating a paycheck.
So the real compensation in a nursing home wrongful death claim is going to be in that second category, which is intangible value, intangible things, not like a paycheck, something that is akin to general damages we’ve talked about in previous episodes. So intangible value of life from the perspective of the resident can be anything from determining what is the value of seeing another sunset, what is the value of watching your grandchild interact with great-grandchildren, watching to talking to old friends about good times. All of that squeezed into however much time you have left remaining in life.
A lot of times in these cases, the nursing home or the defendant’s attorneys will argue, “Well there’s not a lot of full value of life because this person has already lived a long time, and so therefore the value of life, an intangible value of life for a 15-year-old should be substantially more than one that is 90-years-old.” And the counterargument to that is that the remaining two or three years are the most important. They’re the last ones that you have. And so you need to put a price on the last 250 to 600 sunsets that you’re going to see, put a price on being able to give advice to a great-grandchild, something along those lines. So offering advice, whatever that feeling you get when maybe you give advice to a child, that’s the full value of life from an intangible component or the intangible aspect of it.
Well there’s going to be a couple of things that might affect what value you might be able to get out of a settlement or potential award. This is typical among most nursing home claims. The first thing is where the claim can be brought. Depending on the county that you’re in, jury verdicts can be on average higher than other counties. So we call some counties conservative – not necessarily political conservative but conservative in the sense they don’t typically award large judgments. There are some counties where that is not the case. And as a consequence of that, in settlement discussions, the nursing home or the defense attorney might take that into account and offer a higher settlement.
There are going to be other issues as well. So for example, whether or not the case has to be arbitrated – typically arbitration awards are sometimes less than jury verdicts. Statistics bear that not – not necessarily going to be the case every time but statistically the arbitration awards are not as high. And other factors as well that might affect settlement value like how strong is the causation component of your case, how strong is the negligence component of your case.
Typically the statute of limitations for a wrongful death claim is two years from the date of death. And that is going to be a hard stop. Typically that is not extended, so no matter what, you’re going to have two years from the date of that person’s death to file a lawsuit for wrongful death. Now as we mentioned before, an estate claim, the personal injury claim held by the deceased person that is brought by the estate, that is typically going to be two years from the date of the injury. However there are certain circumstances in which we say that can be tolled, meaning the statute of limitations time period can be extended for estate claims for reasons that we won’t get into at this time. But typically you have two years for the wrongful death claim, which starts at the date of death, and for the estate claim, typically you have two years from the time of injury.
So it takes a long time to prepare these cases, so if you think something has happened to your loved one, don’t delay. Every day counts with regard to filing a lawsuit because there is statute of limitations, and even though two years sounds like a long time, it takes a long time to work these cases. So it’s important that you reach out to an attorney if you think that you do have a case.
So we talked earlier about who can bring the wrongful death claim and we said it’s the spouse or the child that can bring it, in some instances the estate, in some instances the grandchild. But typically how is compensation divided among the next of kin, because like I said, just because – in a situation where there’s a spouse and children, they all do not need to be named as the plaintiff but they all do hold the claim and can collect compensation if there is recovery based on that wrongful death claim.
So typically how it works is you have a spouse or surviving spouse and you have surviving children, the spouse will never get less than a third. So the deceased resident, if they have 15 children, then the surviving spouse is going to get a third, and then the 15 children are going to split equally the rest. If a child has pre-deceased the deceased resident, they do not collect. So if there were 16 kids but one of them died leaving 15 surviving children, the estate or the children of that 16th child do not collect. Only surviving children and surviving spouses are allowed to collect. So again, if there is no spouse, then the children will all – surviving children will all split equally the compensation or the recovery for the wrongful death.
I think that pretty much covers the 40,000-foot view of wrongful death in Georgia. If you’ve got any questions, reach out to us. If you’re enjoying the content of the Nursing Home Abuse Podcast, be sure to like and subscribe. If you’re watching this on YouTube, leave a comment. New episodes every other Monday morning. We are happy that you’re listening, hope you stuck all the way through this episode. And with that, we’ll see you next time.