You are here:

Medical Malpractice/Possible Malpractice Case?


QUESTION: My mother recently died and I am suspicious about what caused her death and want to know if the situation warrants a lawsuit. I don't believe lawsuits should be filed every time someone dies or something seems odd, so I really want to know if I might have a case.

On January 11th, my mother fell out of bed and fractured her shoulder. Although she was 101, she had NO health problems. So please don't tell me that a fractured bone in an elderly person is a death sentence.

To make a long story short, after a week she ended up in a nursing home/rehab facility for rehab as she had become fearful of walking and her muscles were getting weak. Prior to her fall, she was quite mobile. She had a walked, but didn't always use it. She was also able to climb up and down stairs.

At the nursing home, he condition deteriorated. She was losing weight, became dehydrated, had elevated sodium levels, developed a blood clot in each leg, got a urinary tract infection, and they thought she might have developed pneumonia. When her oxygen levels began to drop, they took her to the hospital.

At the hospital, her condition improved dramatically. The doctor wanted to send her back to the nursing home, but I said absolutely not. He actually was quite rude to me on more than one occasion. I told him my goal was to have her back home. At one point, he told me if I took her home, I better not call 911 and take her back to the ER. As far as he was concerned, she was all but dead and belonged either in a nursing home or somewhere she could get hospice care. Forget the rehabilitation.

There were two problems. One my mother was still fearful of walking, although by this time her shoulder was all but healed. She was not allowed to bear any weight on it, however, which made it hard for her to get up. She wanted to use her arm, more for security than anything else as she had ample help getting up. The goal was to bring her home and continue rehab on home.

The other problem was that my mother had some difficulty swallowing. She'd had a slight problem for a good long time and yet I managed to get her fed at home without any problem. Both the nursing home and the hospital insisted on giving her pureed food and thick liquids. She had hard time swallowing the food with the thick liquid - which I told them repeatedly. Fortunately, I work from home so I was able to spend between 4-6 hrs every day wherever my mother was to make sure she ate at least one meal each day. I rarely had a problem getting her to eat, but it took a long time and she never ate everything.

My mother never ate a lot. She mainly nibbled all day, eating the most at meal times, but I made sure she ate enough. The nursing home and hospital staff refused to listen to me. The doctor suggested putting in a feeding tube. I resisted for a long, long time because from my experience with my mother, it wasn't necessary. The speech therapist at the hospital insisted it was best for my mother. She scheduled a swallow test, which I was told "proved" my mother was aspirating some of what she swallowed.

When they told me that my mother could have "pleasure feedings," I finally relented and gave permission for the feeding tube. The feeding tube was put in on a Saturday. She was scheduled to come home on Tuesday. A hospital bed was delivered to our home on Monday. Late Monday afternoon, I was shown how to feed her with the tube. It seemed to be that they were putting a lot in her stomach at once, considering that she ate such small quantities of food at one sitting. They gave her a whole bottle of Ensure, along with two syringes (large ones for the feeding tube) fulle of water. I don't know if they continued feeding her the formula after that. (Ensure was something extra they gave her, for what reason, I'm not sure. Perhaps to show me how the feeding is done.)

By midnight on Monday, my mother was dead. They called me to come to the hospital and when I got there, they told me she had been vomiting and I couldn't see her yet because she was being cleaned up. Vomited? She wasn't sick. Why was she vomiting? I couldn't find anyone who was there who could tell me exactly what happened when my mother died. Every time I asked someone, the answer I got was, I can't tell you since I wasn't there. The director of the department gave me a slightly different answer, telling me that she had been called, told my mother had been vomiting and then became unresponsive - so they let her go. Okay, that's still bad, but why were they still cleaning her up when I arrived? And why was she vomiting in the first place?

More interesting is that when the funeral home gave me copies of the death certificate, the doctor had written that my mother died of cardiac-pumonary arrest. I could live with that. But he had also written that she had suffered from acute left heart failure - for 3 weeks prior to her death. Not once did he say a thing to me about a heart problem, not even when he was trying to talk me into putting my mother out to pasture to get hospice care while I waited for her to die. He had made it clear that because she had fractured her shoulder and had trouble swallowing, she was going to die, so make her comfortable. Nothing was said about her heart or about her having only 6 months to live or any such thing. None of the tests they gave her showed ANY signs of ANY other health problems.

Sorry for the length of the story, but this has been bothering me since my mother died a couple of weeks ago. I was going to try to get more info from the hospital and even try to get a copy of her medical records, but I decided I should try to see if there was any point. I might still want to get the records just for my own peace of mind, but I also want to know if this situation is significant enough to warrant a law suit. I fear that people will continue to accept the situation because "she was old." Old age by itself is not a disease and shouldn't be an excuse for people to mistreat the elderly.

If you have any advice, please let me know. But please don't just tell me that she was old as if that makes it all okay.

Thank you.

ANSWER: Carol: I am sorry for your loss. You obviously had a very close and loving relationship with your mother.  I didn't mind the length of your story and I will reciprocate in kind probably.  Firstly, please understand that I am recently retired from nearly 40 years of representing victims of accidents, defective medical products and medical malpractice.  So, I am on your side and have a good idea what works and what doesn't.

You must understand that unless the case is so "black and white" and the resulting injuries quite severe,(ie; removal of the wrong kidney)  virtually every case is strenuously defended by the medical provider.  As soon as there is any sign of a malpractice case being brought the doctor pays his 5 or 10K deductible and the insurance company then brings in specialized lawyers to defend the case.  So the bar is very high for a lawyer to take the case on behalf of the patient.  The liability must be very strong and the damages very high..........well into the 6 figures at a minimum.  What is a strong liability case?  Example I use is, imagine 10 very qualified doctors reviewing the entire medical record of the patient.  My standard would be that at least 7 or 8 of them must be willing to testify to something like the following: "wow, what was the doctor thinking?  He handled the case terribly, used poor judgment, and did not follow the STANDARD OF CARE.  No competent doctor would have done what he did......or failed to do".  Even in such a case, it is a certainty that the doctor will be defended to the hilt with experts who will say, even in the worst cases ..........."it is unfortunate that the patient had such a bad outcome but Dr. Doe used "reasonable medical judgment" and at all times acted within the STANDARD OF CARE.  Note Carol that this entire discussion applies not just to a single doctor defendant but also to a clinic, hospital and any other medical providers.

So the plaintiff's lawyer right away has to look at spending many thousands of $$ to prosecute the case by hiring medical experts and incurring other litigation costs.  If the case gets close to trial the costs are in the 10s of thousands and if the case actually goes to trial, imagine the costs of having those experts come to court and typically hang around for hours or days to testify.  Then, even if the case is strong the odds of a jury making an award big enough to make it worthwhile to the attorney and the patient is maybe 50/50 at best.  In my county here in CA, I just heard a statistic:  only one case in the past 5 years resulting in a plaintiff's jury verdict.  Of course many get settled prior to trial but usually for a fraction of what was sought by the plaintiff.

In your mother's case, for the sake of discussion, let's presume the worst; the feeding tube was used incorrectly and excessive food was introduced such that it caused a rupture of the stomach or shut down the liver for instance.  Stated plainly, what they did caused the death.  The case would still be strongly defended.  No doctor is going to admit that they killed someone (this goes for a nursing home or other providers as well) and the case would be defended.  The defense would be (1) what was done was within the STANDARD OF CARE (that is, they followed "the book" on how to treat the patient) and the problem that caused death could not have been foreseen and (2) as cruel as it may sound, they will say "at 101 with a serious heart problem (and probably lots of other potentially life ending medical problems), she had little or no life expectancy.  We did our best to maintain her but she had terminal problems and she would have passed whatever we did.  We could not let her starve to death."

As far as saying "she was old and it's ok", my view is that the older a person is, the more precious every day is.  But your mom was declining fast and it seems that the trauma of the shoulder injury started the final process of her body shutting down.  This is quite common. Elderly people all the time end up in the hospital with a fractured hip for instance and never make it home.  And when you are thinking about a lawsuit, economics is always the biggest factor.  The lawyer won't take the case unless there is a very good chance of recovering his/her thousands of dollars in costs to pursue the case and, make a big fee to compensate for hundreds of hours of work over many months or even years.  And even if the jury is convinced that medical malpractice occurred, how much do you think they might award considering your mother's life expectancy without the negligence occurring?  If your mother were much much younger, had a decades long life expectancy and was killed by negligence, obviously the value would be much much higher.  Case  values are based on the value of what was lost.  If she was 60, she would have potentially lost 40 years!  Under the actual circumstances, it could be that she lost 40 days.  So age and health factors in and you just can't avoid that.  So, bottom line, this isn't close to a viable medical malpractice case.  However, one further thought:

If her death was precipitated by a clearly defined act of negligence at a nursing home,  I would do a little research to see if there have been any similar cases or a pattern of such cases at the facility. If there has been a string of questionable deaths of patients some law firm could take interest.  There is an entire sub-specialty of lawyers for "nursing home negligence".  You might look into that.  Hope this helps.  I am confidant I am taking the correct view of the situation are far as legal issues are concerned.  Best of luck.  Glenn

---------- FOLLOW-UP ----------

QUESTION: Thank you. I suspected as much, which is why I didn't do anything about this. However, after speaking with a doctor who told me that feeding tubes aren't helpful for elderly patients like my mom and that aspiration of regurgitated stomach contents is common, I thought I would ask. I do want to clarify one thing, though. She was not physically declining. Her organs were not shutting down. The doctors were amazed by that. She did not have a serious heart problem. There was nothing wrong with her heart. The doctor never once mentioned her heart. If he had and had told me she had a short time to live, I would never have said okay to the tube. I would have brought her home with hospice care. I don't know why the doctor put the heart thing on her death certificate.

Any decline my mother experienced was due to the lack of sufficient care she received at the nursing home. When she was transferred to the hospital, she improved. Her ONLY problem was some trouble swallowing.

From what I saw, I can tell you that when the elderly decline as a result of a fall, it is more likely than not due to a lack of appropriate care and an attitude of "they're old; it happens." It was disgusting.

There was a LOT I left out about what happened in the nursing home. I did check to see what kind of complaints had been lodged against that home. There were similar complaints, but not surprisingly, when they were investigated, no violations were found.

Anyway, I thank you very much for your long and detailed response. You did confirm what I suspected. I still want to know exactly what happened to my mom, though. If I ask the hospital for her medical records, would they give them to me? Or would I have to get a lawyer to get them to release them? I want to see what kind of heart problem my mother had for 3 weeks that the doctor didn't think he needed to tell me or my brother about. If I find out that she had a serious heart problem (which no one ever mentioned), I might feel less guilty and angry about her death. I'd like to ask the doctor why he never told me. I would have brought my mother home for hospice care. She would have died at home where she so desperately wanted to be. She kept telling me, "I want to go home." If she didn't have a heart problem, I want to know why the doctor put that on the death certificate and what exactly the cause of death was.

Either way, I just want to know the truth. Any chance I can get those records from the hospital?

Thank you again for your detailed response. I know how long it takes to respond with such detail, so I genuinely appreciate it.

As far as the records are concerned, call the hospital and ask what requirements they would have.  If you had Medical Directive signed by her authorizing you to make medical decisions for her on her behalf if she was unable, that would probably cover records.  But it sounds like you don't have such a thing.  

At the risk of being presumptuous and pissing you off at me, if you were my sister for instance (we are probably about the same age)I would urge you to leave it alone.  There is nothing to be accomplished and all that would result is you chewing over the matter for the rest of YOUR life.  To what end?  Would your mother want to see that??  She had a serious heart condition that was probably not treatable. She would not have wanted lots of difficult medical care and would she not have been able to die at home as she wished if it wasn't for the fractured shoulder and then failure to intake enough nourishment? I doubt that you knew much about her lungs, liver, GI system and other critical body systems because they weren't testing these systems because there was no point.  I hope you find closure and peace with this.

Medical Malpractice

All Answers

Answers by Expert:

Ask Experts


Glenn A. Dorfman


Thirty-four years experience in personal injury, medical malpractice and medical product liability law. Qualified to answer all questions regarding injuries and the law, except for worker`s compensation. Also wide experience in medical product defect cases ie current litigation regarding the Johnson&Johnson (DePuy)defective hip implant cases and Mirena IUD issues


Thirty-four years experience handling cases involving auto accidents, trips and fall, fires, dog bite,medical malpractice and defective medical product cases with particular emphasis in 2012 and beyond with the DePuy ASR (Johnson&Johnson) defective hip implant cases. Twenty-five years of experience with defective IUD issues as well

Jurisdoctor Degree 1976 and Member in good standing with CA State Bar Assoc. since 1976

©2016 All rights reserved.