Wrongful Death Cases Involving Bedsores: What if the Death Certificate Fails to Mention Bedsores as the Cause of Death?
Our first Nursing Home Neglect and Abuse blog dealt with the Florida Nursing Home Bill of Rights and summarized the various ways, e.g., the occurrence of bedsores, in which nursing home neglect and abuse may be manifested. Our second Nursing Home Neglect and Abuse blog discussed institutions besides nursing homes where bedsores may develop due to the institution’s negligence; these institutions include hospitals and rehabilitation centers. These blogs also addressed the often complex underlying emotional remorse and anger which the victim’s family may experience upon realizing that their loved one has been the victim of nursing home neglect.
In this blog, we focus more specifically on an actual situation where a nursing home negligence victim does not recover from serious bedsores prior to passing away, and the subsequent death certificate completed by the attesting doctor relates that the cause of death was caused by something other than the bedsores.
Let us take the case where a senior loved one develops bedsores while residing at a nursing home. The bedsores are not dealt with properly from the beginning and unfortunately develop into Stage III or possibly Stage IV bedsores. The victim’s family is very attentive and complains to the nursing home staff as soon as the bedsores are observed. Yet, the nursing home fails to take proper action to prevent bedsore evolution from a relatively minor wound into a serious and potentially life threatening situation. Unfortunately, nursing homes which are receiving limited Medicare and Medicaid funds to “house” certain residents, may be less likely to respond to family complaints, even though theoretically, all residents should be receiving the same level of care regardless of whether the nursing home is being paid through private funds or government funds. It should be noted that diabetic residents may be particularly prone to bedsores.
Let us now assume the unfortunate bedsore victim develops Stage IV bedsores and dies, either in the nursing home or in the hospital where she was transferred in the last days of her life. The doctor who completes the death certificate, though aware of the bedsores, lists heart failure, e.g., as the cause of death. The victim’s family understands that their loved one had a long term heart condition, but is reasonably certain that their elderly loved one actually died of complications typically related to Stage IV bedsores, such as sepsis.
The family members may nevertheless feel helpless in questioning the authority of the doctor who signed the death certificate. Attorneys may also be hesitant about challenging the medical examiner’s opinion because of the legal costs involved and because of the “weight of authority” generally given the attesting doctor's stated opinion.
A recent case out of the Fifth Circuit Court of Appeal in Florida, however, suggests that the legal landscape may be changing. In Marshall, etc. v. HQM of Winter Park, LLC, etc., 959 So. 2d 1207 (Fla. 5th DCA 2007), the Plaintiffs’ son had been admitted to the Defendant's nursing home facility for care relating apparently to a terminal condition. Sadly, he died the next day. The death certificate, stated that the cause of death was due to his pre-existing terminal condition.
His parents, as the personal representatives of the son’s estate, were not willing to take the death certificate at face value, and sued the facility in a wrongful death action based upon alleged nursing home negligence. Their lawsuit was based on the opinion of a doctor who was willing to look deeper into the circumstances surrounding their son’s death. It was this doctor’s opinion that the cause of death was actually from aspiration and vomiting due to the failure of the defendant’s facility to properly monitor the son’s oxygen levels. The lower court nevertheless granted summary judgment to the Defendant-medical facility.
The parents appealed the lower court’s decision to Florida’s 5th District Court of Appeal (DCA). The 5th DCA reversed and remanded the lower court’s decision and stated:
[i]n granting summary judgment, the trial judge apparently gave conclusive effect to the death certificate and disregarded the opinion of the Appellants’ expert. This was error. Marshall at 1208. The court went on to cite Fla. Stat. s. 731.103(1) (2007) which states that: "[a] death certificate is prima facie proof of the fact [of death], place of death, time of death, and the identity of the decedent" and held that: [a] death certificate] does not constitute prima facie conclusive proof of the cause of death; it simply states the ultimate opinion of the attesting physician. Our Emphasis. When, as here, a conflicting opinion of causation is offered, summary judgment is not appropriate.”
Although it did not involve an actual bedsore case, the Marshall case should nevertheless be applicable to such cases because it stands for the proposition that death certificates, as they relate to the stated cause of death, are not in and of themselves “fool proof” from legal attack. This case should encourage families who in good faith believe that their loved one actually died from complications related to serious bedsores instead of the death certificate’s stated cause of death to consult with attorneys experienced in nursing home negligence and abuse. If the attorney decides to take the case, the attorney will need to quickly gain access to vital medical records and retain a medical expert, all for the purpose of proving the real cause of death of the clients’ loved one.
We would like to add that we also have families and the typical worries and concerns as both parents and the children of elderly parents. The subject matter of this blog is certainly serious, and we are the first to admit that a lawsuit will not bring back the loved one who passed away due to nursing home negligence or abuse. It is our hope that family members who seek legal recourse through an attorney will at the very least eventually gain a sense of closure and to some extent, satisfaction in knowing that the negligent actions of nursing home were not “swept under the carpet” in the case of their own loved one.
