This was an elder abuse case against a nursing home. An over-70-years-old resident of that home fractured her hip when she fell out of her bed when the bed rail on the bed was not put up properly by the home. Soon after, the elderly resident died. Her survivors brought an action for elder abuse. The nursing home defended itself by saying that there was no requirement that the bed rail be up at the time of the incident; that even if it was a requirement, this did not constitute elder abuse, which by definition calls for malicious conduct or gross neglect. In addition, the nursing home claimed that since the resident died before her case came to trial, she was only entitled to her out-of-pocket losses for the treatment of the hip, which would have excluded treatment covered by Medicare and insurance, and thus, refused to settle the case based on no liability and no damages.The law offices of Winer, Burritt & Scott, LLP, was able to establish that the decedent had multiple prior falls at this nursing home which were documented in the records and which would have indicated the need for the bed rail to be up at all times in which she was in bed. Through extensive discovery, they were also able to document hundreds of other incidents of similar neglect with other patients in this home over the past several years and that the home had been warned by State agencies to take better protective action with their elderly patients and had failed to take sufficient action. Thus, the plaintiff created a risk for punitive damages.

RESULT: Settlement on behalf of the plaintiffs for $400,000