Nursing Home Negligence Law Summary
I. CAUSES OF ACTION
A. Nursing Home Negligence
In Kentucky, a nursing home negligence plaintiff must prove two elements. First, that the nursing home care was below the degree of care and skill expected of a reasonably competent nursing home under the same or similar circumstances; and, second, that the alleged negligent act proximately caused the claimed injury. Kentucky employs the “substantial factor” test, meaning the nursing home’s negligent conduct must be a substantial factor in bringing about the harm.
B. Resident’s Rights Claims
KRS § 216.515 expressly lists the rights of long-term care residents. A cause of action may be brought by a resident or the resident’s guardian to enforce those rights. A resident’s rights claim does not survive the resident’s death.
C. Corporate Negligence
Kentucky courts have not recognized corporate negligence as a cause of action against hospitals or long-term care facilities.
D. Consumer Protection Act
Sometimes a plaintiff attempts to bring a claim under the Kentucky Consumer Protection Act. The Act declares unlawful any “[u]nfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce.” It is only applicable to the “entrepreneurial, commercial or business aspects of the practice of medicine.”
E. Wrongful Death
Where a nursing home resident dies, the individual’s estate will have a claim for wrongful death under KRS § 411.130. A wrongful death claim, and any surviving personal injury claims, must be commenced within one (1) year after the qualification of the representative of the decedent’s estate. However, if there is an interval of more than one (1) year between the decedent’s death and the qualification of his estate’s representative, the claims must be commenced no later than two (2) years after death.
Oftentimes, a resident or authorized representative signs an arbitration agreement on admission. If the arbitration agreement has the proper language, and the individual signing the agreement has the proper authority, the survivorship claims (including pain and suffering and punitive damages) may be moved to arbitration. Typically, a wrongful death action is independent from these personal injury claims and will remain in the trial court.
A. Compensatory Damages
The damages available in a nursing home negligence claim include past medical expenses and pain and suffering. In a wrongful death claim, the plaintiff (the estate of the decedent) is entitled to recover funeral expenses, along with a sum which fairly and reasonably compensates the decedent’s estate for his or her loss of power to earn money during his or her lifetime.
B. Punitive Damages
A plaintiff may recover punitive damages only upon proving, by clear and convincing evidence, that the defendant acted towards the plaintiff with oppression, fraud or malice. Kentucky courts do not bifurcate punitive damages from the issues of liability and compensatory damages at trial.
This website has been prepared by Dzenitis Newman, PLLC for informational purposes only. Information contained on this website is not intended, and should not be considered, to be legal advice.
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