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Thank you for your question. I'm very sorry to hear about your situation.
Your attorney is correct in his concern. When one party is negligent, that party is only liable for damages which were proximately caused by the negligence. In this case, the assisted living facility may have been negligent by not keeping any eye on your mother in law and letter her walk out. However, the fact that she died of pulminary embolism 5 days later was not a direct result of the fact the potentially negligent act of the assisted living facility. Without that direct link between the negligent act and the injury causing death, there is likely no liability.
Regardless, you should go ahead and demand the entire amount of the policy. Please let me know if you need further clarification or have any other related questions.
Why do you recommend to ask for policy max? We are very very confused. The facility we placed her in held themselves out as an assisted living facility and we found out they are a boarding home. We also have proof from the state records of years of violations. There insurance company wants to settle but our lawyer is recommending a low six figure demand. We have two experts that have written compelling reports.
I'm of the opinion that when dealing with a wrongful death situation, a demand of the entire policy limits is not unreasonable. Some attorneys have different tactics. Again, since the damage is not direclty linked to the negligent action of the assisted living facility, you are not likely legally entitled to a high damage award. Your attorney might want to simply start at a more realistic settlement figure than starting high and having to negotiate downward. In the end, if you got a low six figure settlement from the assisted living facility based on these facts, then you would have been very succesful.
The biggest problem with your case is that your mother in laws death occurred five days after she left the facility. What did they do that you have evidence of which caused her death? That is the central issue on whether or not you can prove damages.
What do these expert reports say?
Our attorney is not pursuing wrongful death, but is going after statutory damages of her patient rights, and is hoping to make a case on presumative damages, stating that the jury should assume she suffered emotional damages in the last days of her life. She had walked out of this facility on more then a few occaisons and was found by the police and returned. Her last elopement was to the hospital. Our lawyer is trying to make a case that if it weren't for their negligence, she would have never ended up in the hospital and died. One expert is a boarding home expert that found numerous statutory violations on the facility and the other expert was a medical expert that concluded that if she did not elope she would have never died. Her autopsy report showed perfect health. Both experts concluded he was negligent. Our attorney is afraid of demanding too high and not getting a counter offer from the insurance company which would lead us to trial.
First of all wrongful death is a general term which refers to a law which allows certain claims brought by the next of kin for a personal injuries suffered by or leading up to the death of a person.
The tie between her death and the elopment is tenuous. The statutory damages for the violation of her patient rights, which in this case is to have someone keep her from walking off the property when she is in a state of dimentia, are not going to be high damages. If the case were different, you might have a higher damage claim, but as it is the other side will be pointing out problems in causation. Your attorney is taking the strategy that if you start too high with the demand, then it may cause a rejection with no counter-offer based on the other side's belief that there are serious issues with your case as far as proving the link between causation and damages.
If he does not want to go to trial, this might be because he has serious concerns regarding the winnability of your case. I cannot second guess his work here, as I don't have access to your entire case to be able to tell you exactly what I think about the lower settlement offer.
My experience has been that a high demand will not necessarily cause them not to eventually make an offer that is within an acceptable range, but it definitely may prolong the litigation. In the end, you are the one who makes the decision regarding the number. If you think a low 6 figure offer is not where you want to start, then tell him you want him to demand more. If he cannot convince you that his plan is better, then you should trust your instincts and ask for more.
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