By Andrew Gross / November 17, 2017
Consider three scenarios: First, a nursing home employee repeatedly sexually assaults and batters an elderly resident who suffers from dementia and is incapable of protecting herself. Second, an assisted living employee rapes an elderly resident in the bedroom of her locked apartment. Third, a nursing home employee misuses a mechanical lift to transfer a patient from her bed to a wheelchair, dropping the suspended patient over four feet to the hard tile floor and causing extensive fractures.
Now, assume that the Minnesota Department of Health investigates each of the three scenarios and determines that either neglect or abuse occurred in each case. Assume further that the employees in the first two scenarios plead guilty to criminal sexual assault. Also assume that the medical expenses for the fracture injuries in the third scenario exceed $100,000, a significant portion paid by Medicare and Medicaid. Finally, assume that the injured persons in each of these scenarios dies a year after the tort from causes unrelated to the wrongful conduct (e.g., caner or congestive heart failure).
What happens to their tort claims after they die? Under current Minnesota law, the tort claims for personal injuries in the above scenarios abate with the death of these injured persons. Consequently, the tortfeasors enjoy an unjustified, fortuitous windfall. The wrongdoers will not be held accountable for the harm they cause. The government or health insurer will not recoup any of the payments made for medical care ca used by the tortfeasors’ wrongful conduct. The wrong will never be made right. In effect, Minnesota law denies its citizens a just remedy that is allowed in nearly every other jurisdiction.
Survival of a party’s claims after death is governed by statute in Minnesota. The general rule under Minn. Stat. § 573.01 is that all “causes of action by one against another, whether arising on contract or not, survive to the personal representatives of the former and against those of the latter.” Although the statute is “broadly inclusive,” it specifically excludes injury claims: “[a] cause of action arising out of an injury to the person dies with the person of the party in whose favor it exists.”
Minnesota’s abatement statute inherently encourages defense interests to use strategic delay tactics when defending against a significant tort claim involving an elderly plaintiff. If successful, the defense can drag out the case long enough until the already medically-compromised plaintiff dies, thereby relieving their client from any responsibility for the harm caused by their client’s wrongful conduct.
During the winter and spring of 2008, employees of a southern Minnesota nursing home repeatedly neglected and sexually, emotionally, and physically abused elderly residents at the facility. Criminal charges were brought against two of the nursing home employees in December 2008. Civil law suits were filed in state court on behalf of four of the nursing home residents in January 2010. Two months later, the U.S. Attorney intervened and removed the case from state court to federal court after the plaintiffs had requested a court order directing the Minnesota Department of Health to produce its investigation file. The plaintiffs were finally able to remand the case to state court in May 2010. Following the delay caused by the federal government’s intervention, in August 2010 the state court granted the defendants’ motion to stay the civil proceedings pending resolution of the criminal cases, over the plaintiffs’ opposition. At the same time, the trial court denied the plaintiffs’ motion to expedite the case. Several extensions were granted in the criminal cases, which further delayed the plaintiffs’ access to discovery in the civil case.
These delays undermined the plaintiffs’ right to obtain justice “completely and without denial, promptly and without delay” as granted by the Minnesota Constitution, Article 1, Section 8, which mandates: “Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws.” (Emphasis added.)
Before their civil cases were resolved, three plaintiffs passed away from unrelated causes in the summer and fall of 2010. The trial court dismissed the three cases due to the abatement of their claims under Minn. Stat. § 573.01. With the dismissal of the civil actions, and the threat of civil liability now behind them, the defendants facing criminal charges then entered pleas to conclude the criminal charges against them.
Unlike Minnesota, forty-five states permit the injury claim to continue after the injured person’s death from unrelated causes. Arkansas statutory law provides an example: For wrongs done to the person or property of another, an action may be maintained against a wrongdoer, and the action may be brought by the person injured or, after his or her death, by his or her executor or administrator against the wrongdoer or, after the death of the wrongdoer, against the executor or administrator of the wrongdoer, in the same manner and with like effect in all respects as actions founded on contracts. Joining Minnesota in the minority, Colorado, Idaho, and Indiana preclude a recovery of damages for the injured person’s pain and suffering if the injured person dies from unrelated causes. In addition, Arizona generally disallows survival of a pain and suffering claim, but unlike Minnesota, Arizona has an elder abuse statute that expressly provides to victims of elder abuse and their representatives the right to recover damages for pain and suffering, even after the abused victim’s death from unrelated causes.
The Minnesota Supreme Court has described the abatement statute this way: “The old rule of non-survival was based on medieval notions of revenge that no longer have a place in our law[.]” Thompson v. Petroff’s Estate, 319 N.W.2d 400, 407 (Minn. 1982). While analyzing Minnesota’s abatement statute, the Supreme Court has stated that “when an old rule is found no longer to serve the needs of society, it should be set aside and replaced with one that reflects the interests and the will of the people and the demands of justice.” Id. The Minnesota Supreme Court has stated, “Under modern tort theory, the primary reason for the existence of a cause of action is to provide a means of compensation for the injured victim.” Id. The Supreme Court has also repeatedly stated that “the fundamental purposes of tort law” are “deterrence and compensation.” Dickhoff ex rel. Dickhoff v. Green, 836 N.W.2d 321, 336- 37 (Minn. 2013), citing Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn.1992) (explaining that “[t]ort liability seeks to compensate the injured and to deter wrongdoing”). Over thirty years ago, the Supreme Court recognized Iowa’s survival statute, “which provides for the survival of all causes of action,” as “the better rule of law because it acknowledged the ‘essentially compensatory’ nature of tort causes of action.” Id.
Minnesota’s antiquated abatement statute undermines important objectives of modern remedial statutes. For example, Minnesota’s Vulnerable Adult Act (“VAA”) states that “the public policy of this state is to protect adults who, because of physical or mental disability or dependency on institutional services, are particularly vulnerable to maltreatment.” Yet, the abatement statute subverts the remedial policy objectives of the VAA by encouraging wrongdoers to engage in stalling tactics and relieving wrongdoers from civil accountability. By contrast, as mentioned above, even Arizona, which generally disallows survival of a pain and suffering claim, allows the recovery of pain and suffering damages for victims of elder abuse after the abused victim dies.
The Minnesota Court of Appeals has recognized “that some courts, including the Minnesota Supreme Court, have questioned the continuing justification for abating personal-injury claims upon the death of a party.” Butts ex rel. Iverson v. Evangelical Lutheran Good Samaritan Soc., 802 N.W.2d 839, 843 (Minn. App. 2011), rev. denied (Oct. 26, 2011). But, even though the Supreme Court has “characterize[ed] abatement of personal-injury claims as a remnant of the early common law inconsistent with modern tort-law trends,” the Court of Appeals “is bound to apply it ‘because the’ task of extending existing law falls to the supreme court or the legislature[.]” Id.
The existing abatement law is unjust. No reasonable justification exists for allowing wrongdoers the fortuitous avoidance of liability. The law encourages wrongdoers to avoid liability by prolonging litigation until the claim abates with the victim’s unrelated death. Now is the time for our legislature to repeal the abatement statute and allow personal injury actions to survive an injured party’s death.
Joel E. Smith is a founding partner of the Kosieradzki Smith Law firm. Joel has served as the Chairperson of MAJ’s Nursing Home Litigation Committee. He is also active in the Minnesota State Bar Association (currently serving on its Governing Council for the Elder Law Section) and has served as the Co-Chairperson for the MSBA’s Vulnerable Adults Committee. Joel is a Leadership Forum member of the American Association for Justice (AAJ, formerly known as the Association of Trial Lawyers of America) and is actively involved in AAJ”s Nursing Home Litigation Group.