Kentucky Injury Law Blog

Stating they want to find out the truth about how their 22-month-old son died, the family of the little boy has filed a wrongful death lawsuit against an Indiana church. The child was in day care at Praise Fellowship Assembly of God Church in February 2012 when he drowned in a baptismal pool. The wrongful death lawsuit gives the family the ability to subpoena employees of the day care and the chance to ask those who were at the church that day exactly what happened. According to the family’s attorney, “They can’t get any closure. They can’t finish the grieving process until they have some idea what happened to their son.”

Both parents, and probably many others, were surprised when criminal charges were not brought against any of the workers. But the prosecutor stated that while their actions were perhaps reckless or negligent, the workers did not act criminally, and the case would have to be fought in civil court.

In addition to finding out what happened, the parents would also like to have the responsible parties held accountable for their actions and would like to ensure that no others parents suffer through this type of tragedy in the future. Unfortunately, it does not appear they are going to get much help from the State of Indiana.

Shortly after this tragedy, Senator Greg Taylor of Indianapolis presented draft legislation that would require church-run day care centers to meet the same standards as licensed day care centers. Under current Indiana law, licensed day care centers have to meet 192 standards while church day cares only have to meet about 21 standards. Even in-home licensed day care providers have to meet 94 of the standards. Some of the standards that church day cares are not required to meet include staffing ratios and ages and training requirements. But the Senate voted 30-19 against the proposed amendment.

Continue reading "Family Files Indiana Wrongful Death Lawsuit in Son’s Drowning Death at Church Day Care" »

Residents of nursing homes and other long-term care facilities are some of our most vulnerable friends and family members. Even if they are suffering abuse or neglect, they may be physically unable to say anything, or they may be afraid of retaliation if they report this type of treatment. Even family members that visit their relatives frequently may miss the signs of nursing home abuse and neglect.

In an effort to protect this segment of society, the Kentucky House of Representatives has introduced and passed HB 250. This bill, if it becomes law, would require a more thorough background check on potential and current nursing home employees. Currently, name-based background checks are run only on prospective employees that would have direct contact with the residents. Under the new bill, fingerprint checks would be done on applicants to determine if they have been convicted of a serious felony and a database search would show any record of previous abuse. Even after being hired, employees would continue to be checked to make sure they had not been convicted of a serious felony after being hired.

The bill includes $4 million worth of state or federal funding that would cover the cost of the equipment and training and the background checks until 2014. After that, the long-term care facilities would be required to either cover the cost or pass the cost on to the applicant or employee. The background checks would be done at a Cabinet for Health and Family services field office, of which there are about 36 throughout Kentucky.

Some representatives objected, stating the cost would be significantly more than the checks being done now, and that the currt checks are sufficient. Others noted that the federal funding is part of the Affordable Care Act, which may be overturned by the Supreme Court, so the funding would disappear.

The bill has passed in the House of Representatives and is headed to the Senate.

Continue reading "Kentucky House Passes Bill to Require Fingerprint Background Checks on Nursing Home Employees" »

On September 9, 2008, an 87-year-old woman got on a nursing home bus for a trip to the grocery store. When she failed to appear back at the nursing home, nursing staff, family members and police searched for her. She was found 14 hours later, still on the bus. She had become hungry and thirsty and consumed hydrogen peroxide and Tylenol from a first aid kit. She passed away two months later, and family members and friends allege it was a result of the nursing home’s neglecting to return her safely to her room.

The victim’s niece filed a lawsuit against Hearthstone Assisted Living in 2010, but never received any information from the company. The facility was taken over by Kentucky nursing home company Elmcroft in August of that year, but it denied any liability in the incident since it only purchased the assets from Hearthstone. Hearthstone subsequently dissolved and its attorneys stopped representing the company. Because the company never responded to the lawsuit and it failed to appoint new representation when the attorneys quit, a default judgment was granted in the victim’s favor in the amount of $1.65 million.

In many situations this would be a positive outcome for the victim’s family, but this case is different. An award in a case like this is normally paid by a company’s liability insurance, much like the damages caused by someone in an auto accident are covered by his or her auto insurance. Where this situation differs is that nursing homes in Michigan, where the nursing home was located, are not required to carry liability insurance like car owners are. Unfortunately, Hearthstone was self-insured, so when the company was dissolved, the insurance disappeared as well.

Ironically, in the same year the incident happened, a Michigan state representative supported legislation that would have required nursing homes to carry at least $500,000 in liability insurance. The bill did not pass. Michigan is not alone; the majority of states, including Indiana and Kentucky do not require these facilities to have liability insurance, leaving victims and their families without a way to receive payment in this type of situation.

Continue reading "Woman Dies after Being Left on Nursing Home Bus, Kentucky Company Involved" »

On October 25, 2011, a construction worker who was installing sheeting on a roof fell more than 40 feet to his death. Two of his brothers who were also working on the site witnessed the accident. The victim’s wife and brothers have filed a wrongful death lawsuit against a number of entities involved with the job site. While an exact amount has not been given, the attorney for the family said they are seeking a large award.

While the investigation is still ongoing, it appears that strong winds caused the victim to lose his balance and plunge to his death. Initial reports said he was not wearing a safety harness when he fell. Stamford police Captain Richard Conklin later stated the victim was wearing a safety harness, but it was not attached to anything to keep him from falling.

While this accident did not occur in Kentucky or Indiana, the potential legal issues would be the same if the accident had been local. The victim’s family is suing several parties for wrongful death. The lawsuit alleges that the general contracting company overseeing the job was negligent in allowing the workers to be on the roof in the windy weather. This case is similar to the stage collapse in Indianapolis that killed several people. The Indiana State Fair Board and Sugarland, the band scheduled to perform, have been sued because they were allegedly the ones responsible for deciding if the severe weather made the area too dangerous for concertgoers. Negligence does not always result from an intentional act; it can also be unintentional.

The general contracting company in the construction accident is also being accused of not confirming the qualifications of the subcontractor, the victim’s actual employer. While the general contractor didn’t directly hire the company that employed the victim – that was done by another construction company – the lawsuit still holds the general contractor responsible because it oversees the entire job site. The lawsuit also alleges that it was negligent in allowing the workers to be on the roof without the proper safety equipment. Other defendants in the suit also include the victim’s actual employer and the owners of the building on which the work was being done.

Wrongful death suits arise from a variety of situations including car accidents caused by drunk drivers, medical malpractice, nursing home abuse or neglect, negligence, or faulty products. This type of legal action is filed by the victim’s relatives seeking compensation for lost income, medical bills, pain and suffering, emotional distress, and loss of companionship. In the construction case, the victim’s wife is seeking compensation for lost income and loss of companionship and the victim’s brothers want compensation for their emotional distress caused by witnessing their brother’s pain and eventual death.

Continue reading "Family Files Wrongful Death Suit after Construction Worker is Fatally Injured in Fall" »

In April 2010, 29 miners lost their lives and two more were injured in a blast at the Upper Big Branch mine in West Virginia. The former owner of the mine, Massey Energy, sold the mine to Alpha Natural Resources earlier this year. The record-setting settlement will be paid by Alpha, which in return will not face any criminal charges in the explosion.

The settlement will be divided in three parts. Families of the 29 miners killed and the two injured miners will split $46.5 million as compensation for the wrongful deaths and personal injuries that resulted from the explosion. Fines for safety violations at all of the Massey mines that Alpha acquired will be paid with $35 million of the settlement. The remaining $128 million will be dedicated to safety issues, including upgrading equipment, training of employees, and research into future mine safety. Kevin Crutchfield, CEO of Alpha, expressed satisfaction with the settlement, stating, “we’re particularly pleased that a substantial portion of the settlement is going toward furthering miner safety.”

Some families of the miners who were killed were not quite as satisfied with the settlement. One family wanted to know what charges were going to be brought against specific people. Another family member said he wants executives at Massey to be charged rather than just middle management, and he also believes the U.S. Mine Safety and Health Administration (MSHA) should be held accountable. While MSHA representatives said they will review their own handling of the situation, one administrator said they did what they could by shutting down the mine 48 times in 2009. Because MSHA cannot permanently shut down a mine, inspectors had to allow the mine to reopen once the violations were fixed. Families who receive their $1.5 million portion of the settlement are still able to pursue lawsuits, but will have the settlement amount subtracted from any award or additional settlement.

There are multiple parties that could be sued in this situation. The company that owned the mine at the time of the blast, Massey Energy, could be sued as a whole, as well as any of its employees that were involved in the situation. The report issued by MSHA shortly after the settlement showed there were 369 safety violations at the mine in April 2010, 12 of which directly contributed to the blast. A large amount of methane gas and coal dust was built up in the mine, and a spark from unsafe cutting equipment ignited the two. The disaster was made worse by the lack of functioning water sprayers, which could have kept the fire from spreading throughout the tunnels.

Continue reading "$210 Million Settlement Reached in 2010 West Virginia Mine Blast" »

Earlier this month, Toyota again recalled a large number of vehicles due to safety concerns. This recall is a result of potential steering problems in vehicles that have V6 engines. The more than 420,000 vehicles affected in the United States include Camrys, Avalons, Siennas, Highlanders, and a few Lexus models with model years ranging from 2004 to 2006. No accidents have been reported in connection with this recall, but the issue could cause a warning signal to light up, an unusual noise to occur, and the ability to steer could be compromised. Recall notifications will begin to be distributed to affected Toyota owners in January 2012, but people are encouraged to make a service appointment if they experience of these issues before they receive the recall.

This latest recall is reminiscent of the vast recall Toyota began in February of 2.17 million vehicles with potential defects that could cause dangerous unwanted acceleration. The most recent recall brings the total number of Toyota recalls to over 13 million since 2009. Unlike the recent steering problem that has caused no known accidents, the uncontrollable acceleration involved in the earlier recall is thought to have caused accidents involving injuries and even death, and has been the subject of numerous lawsuits.

One such lawsuit was filed by the husband of a woman who was killed when the 2009 Corolla she was driving suddenly accelerated and crashed into a cement barrier. The lawsuit claims product liability and negligence by Toyota, the company that provided the electronic sensors for the vehicle, and the dealership that leased the car to the victim. Product liability arises when an individual or company sells a product that is defective in a way that it is dangerous and could cause harm to the consumer or his property. Product liability can be claimed even if the seller is unaware of the defect in the product. Negligence occurs when the sellers and manufacturers do not fulfill their duty to ensure the products they are offering are safe. Not notifying consumers about the potential dangers of a product once they are discovered also constitutes negligence. This particular case claims that Toyota and the parts makers were negligent because not enough testing was done on the products to ensure they were safe. Toyota and the dealership were negligent because they were aware of the issues before the victim leased the car, but did not tell her about the potential risks associated with driving the vehicle.

Continue reading "Latest Product Recall by Toyota Puts Product Liability in Spotlight" »

Earlier this year, Tennessee passed a law placing a cap on damages that can be awarded for pain and suffering in nursing home claims. Victims of nursing home negligence can only receive up to $750,000 for non-economic damages. The cap does not apply if intentional misconduct is found. Intentional misconduct means an individual did something knowing it would cause harm. Economic damages, including lost wages and medical bills, do not have a cap. This new law negatively affects nursing home residents in three ways. First, the damages cap obviously limits the amount an individual and his family can receive for an incident that may have caused injury or even death. Second, the cap may cause some attorneys to decide not to pursue the cases because the potential award for the victims is not enough to warrant litigating. Third, because the amount a nursing home may have to pay for a negligence claim has been drastically reduced, nursing homes may become even more lax in the care of their residents because they have less to lose.

According to recent data regarding nursing home care in Tennessee, nursing homes are already not providing the quality care residents deserve. Currently Tennessee nursing homes provide an average of 0.62 hours of nursing care to each patient every day. While state law requires only 0.4 hours per day, the current rate is still slightly below Kentucky’s 0.8 hours per day and much lower than Delaware’s 1.22 per day. Studies show that an increase in nursing hours for patients directly increases the quality of care. Unfortunately, increasing care hours also means increasing staffing, which nursing homes are hesitant to do for financial reasons.

When a problem in a nursing home needs to be investigated, Tennessee again fails to deliver. In 2008, the U.S. Government Accountability Office (GAO) found that serious deficiencies that could be harmful to patients were missed more than 25 percent of the time during state nursing home inspections. In April 2011, the GAO reported that the state was unable to prioritize complaints and did not investigate in a timely manner the complaints in which patients were in danger or actually harmed. Some of these recent issues may have arisen from a state bill that was passed in 2009 that no longer required nursing homes to provide reports regarding negative patient events. The bill also eliminated state investigations into such situations. Proponents of the bill said these changes were necessary to allow more serious complaints to be investigated.

Continue reading " Tennessee Nursing Homes May be Getting Worse Instead of Better" »

Personal care homes are intended to be places where people who cannot live on their own can safely reside. These homes do not provide full-time nursing care, just assistance as needed by the patient. Kentucky currently has 83 personal care homes. Many of the 3,000 residents of these homes are mentally disabled or mentally ill. Unfortunately, as in nursing homes, many of these homes are improperly run, resulting in resident negligence and abuse.

In August, 2011, Larry Joe Lee disappeared from Falmoth Nursing Home, a personal care home near Frankfort, Kentucky. Mr. Lee had suffered a brain injury in a farming accident when he was 11 and was schizophrenic and bipolar. His remains were found four weeks later near the Licking River. The Kentucky Cabinet for Health and Family Services’ Office of Inspector General investigated the incident. Documents released in October show that Mr. Lee had not been checked on for three hours when he disappeared, and that the home did not have a policy regarding continual supervision for the residents. Since Mr. Lee’s disappearance and subsequent death, the home has instituted new policies and training regarding patient monitoring.

Larry Joe Lee is not the first person to disappear from a Kentucky personal care home. Larry Bruce Huff disappeared from the Golden Years personal care home in eastern Kentucky in January 2007. Staff at the home waited 17 hours before they notified police, and Mr. Huff froze to death. Mr. Huff had schizophrenia and mild dementia and was prone to wandering away. He had left the home six times in the two weeks before his death. Golden Years was given a type A citation, which indicates that the facility put an individual in danger, after the incident.

The Golden Years personal care home received another type A citation in 2007 when the operator of the home, James “Chum” Tackett, struck and injured a resident. Mr. Tackett was forced to resign and not have any contact with the facility or its residents. Mr. Tackett disobeyed the court order by returning to Golden Years, and the facility was cited again in 2009. Mr. Tackett was also accused of stealing $300,000 from the home and its residents and spending it on himself. Earlier this month, he admitted he stole the money and pled guilty to exploitation of a vulnerable adult, theft, and income tax fraud. While residents were left without clean towels, clothing, and fresh food, Mr. Tackett was spending the money on vehicles and other items for himself. The home was closed by the state of Kentucky in October 2011.

Continue reading "Negligence and Abuse in Kentucky Personal Care Homes" »

On October 28, 2011, a jury awarded Irene Hendrix over $1 million after she suffered multiple head injuries at Cambridge Place Nursing Home in Lexington, Kentucky. Ms. Hendrix, who had been diagnosed with Alzheimer’s, was using a seated walker, called a Merry Walker. She disappeared from the hall and was found later in an empty room, lying on her face.

As a result of her fall, Ms. Hendrix suffered facial bruising and a contusion on her forehead, multiple fractures in the bones of her face, and bleeding on the brain. She was hospitalized for three weeks before being able to return to a nursing home. Her family claims she came close to dying during her hospital stay.

The victim’s family filed a lawsuit against Cambridge Place Nursing Home and the management company for alleged negligence. Because of Ms. Hendrix’s age and medical condition, a written care plan stated she needed to be checked on when using the walker. The management company of the nursing home argued that the care plan was in place and was being followed at the time of the accident. However, several nurses that were interviewed during the course of the investigation stated they did not even know a written care plan existed for Ms. Hendrix.

The award Ms. Hendrix will receive includes just over $24,000 for her medical bills and $1 million for her physical and mental pain and suffering. A couple of factors could have affected the larger part of the award if the situation had been slightly different. Many states have instituted a medical malpractice cap on non-economic awards. This means there is a limit on the amount that can be given to a plaintiff for pain and suffering, emotional distress and other compensatory damages that are not related to lost wages or medical bills. Usually the cap ranges from $250,000 to $500,000 per case. Kentucky does not have a medical malpractice cap, so the entire $1 million in compensatory damages could be awarded. Also, because the negligent party was a nursing home rather than a physician or medical establishment, the medical malpractice cap would not have applied to the entire amount even in a state that has a limit. Oftentimes in these types of cases, it is up to the jury to determine how much of the negligence was medical and the award is adjusted based on that determination.

Continue reading "Nursing Home Resident Awarded over $1 Million for Personal Injuries" »