22 Trial Lawyer • Winter 2023 By Kristen McCall OTLA Guardian I’ve spent the better part of the last decade almost exclusively representing elderly individuals who have suffered abuse and neglect in organized care settings (nursing homes, assisted and independent living facilities, hospice, home health). Not surprisingly, when I represent elderly individuals in personal injury claims and wrongful death claims, I rarely get to know the elderly person. That is usually because they’ve died, often due to the harm caused by the abuse or neglect. The justice I seek for the elderly individual is most often through a representative, usually the adult children, sibling or spouse. But always, my client — the injured person — is the elderly person or their estate. In this kind of representation there are unique chalKristen McCall lenges — and unique tools I use to provide legal representation. The guilt “I just feel guilt.” Whether it comes out clearly, or hidden in their tone of voice, or in the last punctuated sentence of the survivors’ initial email, I hear and feel this sentiment almost always, “If only I’d known.” Their hearts are heavy with trauma, made worse by their own ideas that they somehow could have or should have prevented the abuse. My client's adult daughter, Sarah, reads a DHS report recounting details of her mother, Mabel's neglect. Sixteen falls and no care planning. The last of seven falls caused a bump to her head that eventually killed her. Sarah never knew about any of the neglect until it was too late. Almost never do the Sarahs in my cases have any reason to know — the failure to communicate with loved ones i s par t of the neglect i tsel f. The caregivers were responsible for the consequences of the neglect, not Sarah. The antidote to guilt in these situations is action. That is usually why the Sarahs call on us as legal advocates to do something about it. “I just don’t want this to happen to anyone else.” Our focus becomes, necessarily, answering the question Don Keenan taught me years ago: What did the other side do wrong? After Mabel's first, second and third falls, the caregivers put her back in bed, without assessment or root cause analysis of why she was repeatedly falling in the middle of the night. They never called the emergency contact or her physician to trouble shoot appropriate responses to her safety and care needs. They didn’t discover what they were supposed to learn — that she had a urinary tract infection (UTI) that made her need to urinate frequently, causing her to try and get up without calling for assistance, assistance that the facility usually provided every two hours during the day, because Mabel had difficulty with balance, and UTIs cause confusion. It was the facility’s job to assess and assist Mabel, not Sarah’s. In fact, it is this job, this responsibility, that Sarah gave with full faith and confidence to the facility when Mabel moved in. In the neglect, the trust Sarah had in the facility was broken, with grave consequence. In reckoning with what the facility did wrong, I work hard to develop a quiet and powerful resolve in my client to shift that initial feeling of guilt to an opportunity to build a legacy in her mother’s wake, that bringing a lawsuit — seeking compensation — will not only compensate her family for the avoidBreaking Down Barriers GUILT, GRIEF, GREY & GRAVY ...the failure to communicate with loved ones is part of the neglect itself.
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