As an attorney who handles nursing home abuse and neglect cases, I frequently see situations where residents do not receive the necessary nourishment and hydration required for sustaining health. Both state and federal regulations require that a nursing home provide adequate food and water pursuant to the following statutes:
Nutrition The nursing home must maintain acceptable parameters of nutritional status. (42 CFR § 483.25 (i))
Based on a resident’s comprehensive assessment, the facility must ensure that a resident:
(1) Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident’s clinical condition demonstrates that this is not possible; and
(2) Receives a therapeutic diet when there is a nutritional problem. (42 CFR § 483.25 (i))
Hydration The nursing home must provide each resident with sufficient fluid intake to maintain proper hydration and health. (42 CFR § 483.25 (j))
The facility must provide each resident with sufficient fluid intake to maintain proper hydration and health.

Of all the forms of nursing home abuse and neglect failure to provide adequate nourishment and hydration is one of the easiest to prevent. Nursing homes are mandated by state and federal regulations to timely report any change in a resident’s condition to the treating physician and family, pursuant to 42 CFR § 483.10.

This website is not to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation. In addition to providing related information this blog may also be considered an advertisement for legal services.

If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota, please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact attorney Kenneth LaBore, directly please send an email to klabore@MNnursinghomeneglect.com, or call Ken at 612-743-9048.

The Minnesota cause of action for wrongful death is created by statute, since there is not a cause of action for wrongful death at common law. See, Fussner v. Andert, 113 NW2d 355 (1962). The statute allows for a limited claim for the pecuniary loss resulting from the act of another, the statute does not provide for damages that are subjective such as emotional distress and pain and suffering.

Minnesota Statute 573.01, subd. 1, sets for that a trustee must be appointed to initiate or continue any claims. The trustee’s claim is for the exclusive benefit of the next of kin and surviving spouse of the deceased. The term “next-of-kin” is a term of art and is not the same as “heirs at law”. The next-of-kin, includes the spouse, siblings, parents, and children of the deceased. This has been expanded to include a presumptive “next-of-kin” relationship for grandparents. See, Minn. R. Gen Prac. 144.01. The Minnesota Supreme Court, in the case of Wynkoop v Carpenter, 574 NW2d 422 (Minn. 1998), held that all the next-of-kin may sue, and they go on to define “all next-of-kin” to include “blood relatives who are members of class from which beneficiaries are chosen under the intestacy statute.”

If you are able to establish a claim for wrongful death, the determination of damages is has been interpreted by the courts, to be limited to the pecuniary loss of related to the death. Damages for pain and suffering, grief, sorrow, and emotional distress are limited by the statute.

Generally, there is a three year statute of limitations for wrongful death claims, unless it is a Underinsured Claim, UM, which according to the Minnesota Supreme Court, a six year statute of limitations applies to a wrongful death claim due to the contractural nature of the claim. See, Miklas v. Parrott, 684 NW2d 458 (Minn. 2004).

This website is not to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation. In addition to providing related information this blog may also be considered an advertisement for legal services.

If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota, please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact attorney Kenneth LaBore, directly please send an email to klabore@MNnursinghomeneglect.com, or call Ken at 612-743-9048.

Why is a claim against a long-term care or home care provider

considered medical malpractice?

1. Minnesota Law considers claims against any “medical professionals” to be medical malpractice claims.

2. Claims against a “Health Care Provider” include “a physician, surgeon, dentist, occupational therapist, other health care professionals as defined in section 145.61, hospital, or treatment facility.” (Minn. Stat. § 541.076; See Attachment F).

3. “Nursing home” and “professional services” are specifically included in 145.61, subd. 4:

“Health care” means professional services rendered by a professional or an employee of a professional and services furnished by a hospital, sanitarium, nursing home or other institution for the hospitalization or care of human beings.

4. Minn. Stat. § 145.682 – Expert review required as follows:

“health care provider” means a physician, surgeon, dentist, or other health care professional or hospital, including all persons or entities providing health care as defined in section 145.61, subdivisions 2 and 4, or a certified health care professional employed by or providing services as an independent contractor in a hospital.

5. Case law also supports the inclusion of claims against and long-term and home care provider as medical malpractice claims.

This website is not to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.   In addition to providing related information this blog may also be considered an advertisement for legal services.

If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota , please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member.   To contact attorney Kenneth LaBore, directly please send an email to klabore@MNnursinghomeneglect.com , or call Ken at 612-743-9048.

When your spouse, parent or child dies because someone or some organization did not act  reasonably or carefully and death resulted, survivors are entitled to pursue legal claims under the theory of a Minnesota wrongful death claim, or death by wrongful act.  There are many ways that accidental death occurs – whether by car accident, hospital or medication error, electrical or mechanical malfunctions, house fires, burns at work or home, drunken drivers or boaters, construction collapses, or failures to supervise children or adults with special physical and developmental needs.  There are many ways that death occurs but the simple concept of unreasonableness is always the same.

This form of claim exists even when death is not instantaneous or even within a short time following the injury.  The question rather is whether the injury set in motion a series of events that led to the loss of life.

There are two important times that you must observe:

1)      A trustee to present the claim must be appointed in the Court with three years of the date of death;

2)      The suit for damages must be served within three years of the date of death (two years if improvements to land)

The theory of recovery is simple and straightforward.  Human relationships are of great value and as a survivor you should not be made absorb your family’s loss without compensation from the wrongdoer.

Minnesota wrongful death laws direct the judge to tell the jury that it is their duty to award fair and reasonable compensation to offset the survivors’ losses.  Jurors may consider the purely economic factors such as loss of income and job or retirement benefits, like healthcare or 401K or pension contributions.  They may also consider the services that your spouse, parent or child would have provided to you or to your children or to your household.  The jury may also consider the priceless losses of aide companionship, comfort, and advice.  All these losses are to be measured by the shared years of the natural life that are no longer available to you.

As attorneys who have consulted, advised and litigated claims for injuries and death decades, we are sensitive to the needs of family members dealing with the loss of a family member due to the tragic loss of a loved one.  We know it is important to hold the wrongdoer accountable to receive fair compensation the family, but also to do what we can to protect other from similar harm.   We will carefully investigate all the relevant facts in the case and work aggressively to enforce your rights and to explain how the loss of your family member has changed the survivor’s lives.

We would be pleased to meet with you either in our offices or at your home to discuss a free consultation in your case.

Attorney Alan R. Nettles, Attorney Kenneth L. LaBore, Attorney James K. Daniels and Attorney Suzy Scheller each have independent firms but affiliate on a case by case basis to bring the correct match of trial attorneys for each client’s needs.   Although the client gets the benefit of  a team of  experienced legal advisors the fee is not increased for the client.   There is no fee charged unless a recovery is made.

This website is not to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.   In addition to providing related information this blog may also be considered an advertisement for legal services.

If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota , please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member.   To contact attorney Kenneth LaBore, directly please send an email to klabore@MNnursinghomeneglect.com , or call Ken at 612-743-9048.