Third party right to file small claims lawsuit for elder abuse

Discussion in 'Use of the Law Forum & News' started by meister, May 21, 2016.

  1. meister

    meister Law Topic Starter New Member

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    Local legal clinic advised that I cannot file a lawsuit on behalf of my brother, in small claims court, against skilled facility that damaged him, because of an arbitration clause in admitting papers.

    He went in at about 189 lbs and came out about 142 lbs, sepsis, liver in failure, stage 3 wound on foot, stage 2 wound on lower back, and contracted legs. He was on life support and had to have a feeding tube installed.


    He was not able to recover and died a year later as a result of what that facility did to him.


    My question is, given that the admission agreement was not with me, am I free to file lawsuit in small claims court against them for all the financial and emotional damages caused to me as a result of the elder abuse to brother?


    I was the one providing around the clock nursing care, wound care, physical therapy, frequent tube feeding changes around the clock, dealing with all the medical and insurance, paying for all the DME he needed and other medical supplies. But worse, that facility cut short the life of my best friend, my mentor, my big brother.


    The ripple affect from the damages to him on to me have been staggering.
     
  2. adjusterjack

    adjusterjack Super Moderator

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    The simple answer is no. The law doesn't recognize a cause of action for a sibling based on what you describe.

    Besides, even if it did, I'm betting that your brother's signature on the admitting papers bound his "heirs, successors, and assigns" to the contractual requirement so you would still have to go to arbitration, if you even had a claim, which you don't.

    There are two ways (that I can think of) where you would be able to be involved in an action against the facility.

    1 - If you had been your brother's dependent, you would have a cause of action.

    2 - If you had been executor or representative of his estate you could file on behalf of the estate. But, then, if you won, the estate would get the money and it would be divided between his heirs, which might or might not include you.
     
  3. meister

    meister Law Topic Starter New Member

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    Thank you for the insight.

    I was the POA and DPA for brother, who had a brain injury in 2010 that left him essentially a little boy. I was the one that signed the admitting papers, as his agent.

    Yes, I was dependent on his income plus income to provide place to live and minor assist. After what that facility did to him, our home became and lives became an icu unit requiring around the clock care. Yes, it was my decision to do all that and spend all my savings and income. I was not willing to abandon him.

    C'est La Vie. Your insight is much appreciated.
     
  4. army judge

    army judge Super Moderator

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    Small claims court wouldn't be the proper forum in which to air your grievance and potentially exact retribution.

    The cause of action often used by relatives of in honor of deceased kin is normally the highest level trial court in their state.

    The cause of action is referred to as a WRONGFUL DEATH.

    Remember what such a lawsuit did to OJ Simpson, and the physician who used powerful drugs to put Michael Jackson to sleep nightly?

    The law clinic is quite correct about the admission agreement, it's difficult to overcome, but its been done.

    You might not prevail. So what?

    You want to air your grievances. That's what love does to us. You can be his voice. Win or lose, you just might get to speak for him, let those who neglected him know just how devastating their abuse and neglect harmed him and others.

    I understand why you'd wish to bring such a case. You loved your sibling. You believe you need to do something to honor his memory. Filing a lawsuit isn't to get rich, it's to let others know how you feel about their actions. You have standing to bring such a lawsuit. It's your decision to make whether you pursue it.
     
  5. meister

    meister Law Topic Starter New Member

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    Response: Understood, however, I am up against the Statutes of Limitations in mid July. A Law firm that had the case sat on it, citing how busy they were with other cases, several of which went to trial.

    Plus, I have neither the legal savvy nor financial resources to engage in long protracted litigation as a lone wolf.




    Response: Exactly. I am not seeking the lottery nor a Pound of Flesh. Just a court judgment of their actions causing the death of a life that mattered.


    Thank you for the compassionate and informative insight.


     
  6. army judge

    army judge Super Moderator

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    You can petition the court to allow you to substitute in acting pro se.
    You'll have your day in court.
    You'll have your say on his behalf.
    You'll be able to tell the uncaring ones that your brother was a human being who deserved compassion, kindness, and proper medical care.

    I lived that nightmare with one our sons for 11 long years.
    He was in a coma for ALL of those years.
    I saw the pain on my wife's face.

    When I filed the suit, we were offered a tidy settlement to dismiss it.
    That never happened.
    My wife had her day in court.
    Her reward was watching my intense, probing, six day examination of the uncaring, dismissive administrator.
    I artfully carved up director of nursing for three days.
    I did pretty darn good, for an old, Texas country lawyer.
    That brought another settlement from their lawyers.
    We put on two nurses, and three nursing assistants to testify about a few things in our behalf.
    The jury was out less than an hour.
    They returned a verdict in our favor.

    We gifted it to our two granddaughters, his kids.

    I wish you peace, friend.
     
  7. adjusterjack

    adjusterjack Super Moderator

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    Both of which expired at the moment of his death and were useless thereafter.

    Were you executor or representative of his estate? Did you probate his estate?

    What have you done about that?

    If a lawyer takes the case on a contingency that won't be much of a concern.

    If your current lawyer hasn't yet filed the lawsuit, I suggest you start looking for another lawyer ASAP.