Elder Neglect and Wrongful Deaths in Nursing Homes

It is the nightmare of an adult daughter or son to learn that their mom or dad has not received the care they expected while being a resident of a nursing home, and worse, to learn that their mom or dad has died because of that inadequate care. Sadly, neglect, abuse, and inadequate care of the elderly in nursing homes is not an uncommon occurrence, though an occurrence that at least in recent years appears to be receiving more and more attention. The case of Elizabeth Wettlaufer, the Woodstock nurse accused of killing residents in several southwestern Ontario nursing homes, has most recently kept the subject front and centre. Once a hidden problem, elder neglect and abuse in nursing homes is increasingly being reported to authorities and the media.

In Ontario, nursing homes, also referred to as long-term care homes, must follow legislation called the Long-Term Care Homes Act, 2007, which includes a Residents’ Bill of Rights. The purpose of this Bill of Rights is to make sure that nursing homes are truly homes for their residents. The Residents’ Bill of Rights lays out 27 rights and the first 5 of these rights are the following:

  1. The right to be treated with courtesy and respect and in a way that fully recognizes the resident’s individuality and respects the resident’s dignity.
  2. The right to be protected from abuse.
  3. The right not to be neglected.
  4. The right to be properly sheltered, fed, clothed, groomed and cared for in a manner consistent with her or his needs.
  5. The right to live in a safe and clean environment.

Wrongful death lawsuits against a nursing home are often advanced on grounds of negligence but also for breach of fiduciary duty (trust relationship) and breach of contract. Indeed, by law, the nursing home has made an agreement with the nursing home resident to respect her or his rights under the Residents’ Bill of Rights. If these rights are violated and lead to the death of the resident, the nursing home has broken the agreement.

Compensation for the deceased’s pain and suffering

Where the nursing home resident lives for a period of time after the violation of her rights and before dying, our laws do not allow the pain and suffering that the deceased resident might have endured in the period leading up to her death to be forgotten or ignored. The suffering that a victim endures from her personal injuries prior to death is compensable at law, at least to a some degree.

Under Ontario’s Trustee Act, the estate of the deceased resident can bring an action through its executor “for all torts or injuries to the person…in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased.” Ultimately, the executor of the estate can seek compensation for the personal injury suffered by the deceased while she was alive. A leading case that is illustrative of this principle is the 1994 decision of the Ontario Court of Justice (General Division) called Ashley Estate v. Goodman. In that case, Laurie Ashley died only about 3 hours after her personal injury. Evidence was presented that Ms. Ashley was conscious for those three hours and in pain for that period of time. The Court determined that it was appropriate to compensate Ms. Ashley’s estate for Ms. Ashley’s pain and suffering while alive during those 3 hours.

Compensation for the deceased’s family members

Wrongful death lawsuits against a nursing home can also be brought by family members under Ontario’s Family Law Act, specifically the spouse of the deceased, the deceased’s children, grandchildren and siblings. These family members can ask the Court to compensate them for their loss of guidance, care and companionship that the family member might reasonably have expected to receive from the deceased if the death had not occurred.

A case that helps demonstrates this is the 2008 Ontario Superior Court of Justice case of Singleton v. Leisureworld, which involved a wrongful death lawsuit against a nursing home. In that case, Emma Atkins was 77 years old at the time of her death and had suffered from Alzheimer’s for about 8 years. The Court awarded damages of $30,000 to four adult children, whose ages ranged from 49 to 56 years, and $10,000 to six grandchildren, whose ages ranged from 3 to 22 years. In Singleton, the Court considered that “[t]he family was and remains close” and that the deceased “was an involved and loving mother and grandmother.” All of the four children had maintained a close and caring relationship with the deceased, notwithstanding her age and deteriorated health condition.

Damages to punish the nursing home for its conduct

Fortunately as well, where there is evidence that the conduct of the nursing home leading to the death is reprehensible, malicious and so high handed that it offends the Court’s sense of decency, damages meant to serve as punishment to the nursing home can be available to the estate of the deceased person. These damages are meant to express the Court’s repugnance at the conduct of the nursing home, to punish and deter such conduct, and to mark the community’s collective condemnation (denunciation) of what has happened.
The road ahead

According to Statistics Canada, population aging in Canada will continue to accelerate between now and 2031, a period during which all baby boomers are to reach age 65. It is estimated that by 2036, persons aged 65 years or over will represent between 23% and 25% of the population. It is likely that these trends will also correlate with increased reporting of elder abuse, particularly as Canada’s population ages and we continue to be more vocal about the needs of senior citizens.

Ultimately, in cases involving nursing home abuse, elder neglect, or other inadequate care situations that have resulted in avoidable death, a grieving family seeking justice for their tragic loss may find some comfort in knowing that: (1) their loved one’s suffering before dying is compensable at law, (2) their own loss of care, guidance and companionship resulting from the death of their loved one is also compensable at law, and (3) that where the nursing home has acted in a reprehensible manner, damages to punish the nursing home can be available.

Alfonso Campos Reales

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