In this case for wrongful death, we represented the wife and two adult children of an 85-year old man who died after sustaining a fatal closed head injury. At the time of the injury, the elderly man's hired caregiver was pushing him in a walker, when it hit a bump or rock on the sidewalk and he fell backwards and hit his head on the ground.
The decedent and his wife had been married for more than 60 years at the time of his death, and they had two adult children. The wife suffered from dementia, and following her husband’s death, her son was appointed her guardian and conservator. The son thus made a claim both individually and on behalf of his incapacitated mother.
In wrongful death cases, the claim is generally brought by the surviving spouse and children of the deceased person. In this case, the son was a prominent pediatric physician, and the daughter an educator and consultant in the field of special education. The decedent and his wife had moved to Phoenix from New York only two months prior to the incident that led to his death, primarily because their son and his family lived in Phoenix, and the decedent had located a care facility in Phoenix where he and his wife both could live, albeit in separate apartments. The two apartments were in close proximity to one another, and the decedent visited his ailing wife in her assisted-living apartment every day. At the time of the fatal mishap, the decedent was returning to his apartment after a visit with his wife.
The decedent used a walker with four wheels, brakes, and an attached chair, commonly known as a rolling walker, or rollator. The chair is attached to the rollator so if the user gets tired, he can sit down and take a break. We showed that this type of rollator is not designed to be used as a wheelchair or to transport someone. The safety instructions for all rollators clearly indicate that no one should attempt to push the rollator while someone is sitting in the seat, and the various manufacturers warn that using the rollator as a wheelchair or to transport someone “may result in serious injury or death.”
We contended that the caregiver either knew or should have known these basic safety warnings and instructions. If she did and ignored them, she was guilty of gross negligence or intentional misconduct. If she didn’t know the danger of misusing the walker, she was negligent. Either way, we argued, she and the agency that employed her were liable for the decedent's death.
In prosecuting the claim, we also developed evidence that the caregiver had not been properly screened or trained by the agency, despite a YouTube video we located in which the agency said it provided "the most highly trained and qualified caregivers in the industry." In another video we found, this one posted on a job website, the agency's owner stated that becoming a caregiver "doesn't require a significant amount of experience, training or education." The second video suggested that almost anyone could become a caregiver with no prior experience or training. With this evidence, we also asserted a claim against the agency for consumer fraud.
The wife died before the claim was settled. We settled the claim against the agency and caregiver on behalf of the adult children for $275,000.
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