6/17/2019
The Blame Game: Nursing Home Edition

The Blame Game: Nursing Home Edition

Predicting verdicts in senior care facilities

By Teresa M. Beck , Benjamin Cobb

According to MorningStar’s August 2018 article, “75 Must-Know Statistics About Long-Term Care,” 52 percent of people turning 65 will need some type of long-term care services in their lifetimes. Women will need an average of 2.5 years of long-term care, while men will need an average of 1.5 years of long-term care (the difference is likely due to the longer life span of women). Fourteen percent of all Americans will need more than five years of long-term care over their lifetimes.

The cost of long-term care has also skyrocketed. In 2000, long-term care expenditures in the U.S. were $30 billion. By 2015, such expenditures had increased to $225 billion—a 650 percent increase.

Given these statistics, senior living facilities continue to grow in popularity, and claims against these entities are growing in frequency, as well. Senior living facilities are often viewed as deep pockets, and claims frequently involve serious injury or death. These cases are also very expensive to defend.

With all of this in mind, below are summaries of three senior living cases from around the country. As each case is reviewed, consider the probable verdict and potential outcomes. Three experts—Bette McNee, senior clinical risk management consultant for insurance brokerage and consulting firm Graham Co.; Cyndi Milenski, executive director of Elmcroft of Jackson, a senior living facility in Tennessee; and Rebecca Adelman, founder of the Adelman Law Group—will share their assessments of each case before the actual verdict is revealed. Let’s play The Blame Game!

Case One: Wrongful Death in Colorado

Our first case comes from Pueblo, Colorado. The son of a 77-year-old resident of a senior living facility brought suit for the alleged wrongful death of his mother. While a resident, she allegedly endured multiple instances of abuse and neglect, including multiple infections, bed sores, unexplained severe bruising covering half of her body, dehydration, and malnutrition. There was evidence that the resident was often found lying in her own urine and feces. She also suffered from multiple bouts of pneumonia, urinary tract infections, severe dehydration, and renal failure while residing at the facility, all of which contributed to her death about seven months after she began living there. Witnesses reportedly included some of the decedent’s 10 children who visited often and bathed their mother when, they allege, the defendants failed or refused to do so. The operator was allegedly on notice from the state for numerous deficiencies in patient care during the time before and throughout the decedent’s stay there.

The verdict summary does not provide us with more detail about damages, although we know that at least $57,000 in economic damages were claimed by plaintiffs (likely medical expenses or billing from the subject senior living facility).

Evaluation and Verdict: “The diagnosis of dehydration and reports of bruising can reflect deviation from the standard of care,” says our risk management expert Bette McNee. “These conditions can occur without such deviations, but those issues, together with the family observing inconsistent care, suggest the standard of care was not met. At 77, the patient was on the younger side, relatively speaking. Because the patient passed away, the verdict is likely at or over $1 million, and since the facility was on notice due to prior deviations, hefty punitive damages are likely, as well.”

During pretrial, the defense made an offer of $500,000 in response to a plaintiff demand of $1.1 million. During the trial, the defense made another settlement offer of $350,000, which was lower than the pre-trial offer reportedly because of trial costs. The plaintiffs refused the offer and increased their settlement demand to $1.5 million.

The jury awarded over $5.55 million to the decedent’s son: $57,000 in economic damages, $500,000 in general damages, and another $5 million in punitive damages. (It’s believed that this was a record-setting verdict for Pueblo, Colorado).

Case Two: Wrongful Death in Georgia

In this case, a 71-year-old man died of a bowel obstruction, the symptoms of which developed while he was in the defendant’s nursing home facility. The decedent had been admitted to the nursing home facility as a long-term admission for rehabilitation, and skilled nursing care was required because of paralysis and injuries sustained after a fall. The decedent’s family contended that the nursing home failed to provide adequately trained staff and appropriate care that resulted in injuries and avoidable suffering, including severe bowel obstruction, acute respiratory failure due to the inhalation of vomitus, sepsis, dehydration, and urinary tract infection, all of which led to his death.

Central to the lawsuit was the assertion that there was a lack of appropriate medical staff at the nursing home facility the night that the decedent began vomiting and complaining of a distended abdomen. When the decedent’s symptoms became apparent, the only medical staffer in attendance was a licensed practical nurse who called an off-site physician’s assistant to ask whether to send the decedent to a hospital emergency room. The physician’s assistant answered in the negative, but did order some tests to be performed the next day. The decedent’s condition worsened and he was taken to the hospital the next day, where he died several hours following his admission. The lawsuit contended that professional standards required the facility to have a registered nurse on duty who could have performed a skilled assessment of the patient’s condition. The nursing home had a policy of staffing registered nurses during the day, but only using licensed practical nurses at night.

The nursing home denied negligence, noting that the decedent was a long-term resident following his paralysis from an injury several years before. He had a host of chronic medical problems that, as expected, grew worse over time. The nursing home contended that, through the actions of its nurses and other staff, the nursing home complied in all respects with the applicable standard of care, and no act or failure to act on the part of the nurses or other staff caused or contributed to any of the claimed injuries or damages.

The original defendants were the nursing home, its medical director, and the physician’s assistant who declined to send the patient to the hospital. The estate also sued a parent entity of the hospital. As the litigation progressed, the medical director and physician assistant defendants—and by extension, the hospital—settled on confidential terms, leaving only the nursing home as a party. The jury was asked to allocate liability among all of the defendants, assuming liability.

Evaluation and Verdict: “In any venue, the physician assistant should have contacted the physician for orders related to symptoms reported by the nursing home staff,” says Adelman and Milenski. “The staff complied with the direction from the physician’s office. The resident’s pre-existing conditions reduce the overall value of the case and allocation to the nursing home is probably 30-40 percent. If the resident’s condition continued to deteriorate throughout the night into the morning, the nursing home should have contacted the physician’s office again to report the change in condition. Overall, the verdict would be expected to be in the range of $750,000 total, with a 30 percent allocation to the nursing home.”

The trial lasted five days, and a verdict came back after just three hours. Adelman and Milenski were close in estimating the allocation of responsibility—the jury assigned 20 percent of the fault to the nursing home, while 75 percent of the fault was assigned to the medical director and physician assistant defendants, and five percent was allocated to the medical center. (Remember that neither the individuals nor the medical center were parties in the lawsuit, though.) However, the jury awarded a whopping $7.5 million for wrongful death damages, as well as an additional $121,200 on the estate’s claim for medical, funeral, and/or burial expenses. The plaintiffs requested punitive damages, but the judge did not allow this element of damages, presumably on grounds that gross negligence or other basis for punitive damages had not been established.

Post-trial, the plaintiffs sought additional damages because the amount awarded exceeded the offer of judgment. The nursing home announced its intention to appeal.

Case Three: Wrongful Death in California

Our third case involves a nursing home malpractice case involving a 68-year-old female plaintiff who had been a resident of the facility for just 22 days. The plaintiff contended that the defendant nursing home negligently failed to periodically reposition her, conduct a timely nutrition assessment, or arrange for her to see a physician when a pressure sore in the sacral area and one on each buttock deteriorated.

According to the verdict report, the plaintiff was admitted to a hospital because of stasis ulcers on her legs. The hospital records taken when the plaintiff was admitted noted stage two pressure ulcers in the sacral area and the buttocks. When the plaintiff was transferred 17 days later to the defendant nursing home, the hospital records reflected that the ulcers were superficial in nature. The plaintiff’s condition declined rapidly due to severe understaffing, which included multiple nights with no staff to oversee the care of 17 dementia residents in the memory care unit where she lived, and only two staff members for nearly 80 elders across a three-story building. After 22 days, she was taken to a non-party wound care center, where she had been treating the stasis ulcers on her legs for some years. It was immediately recognized at the wound care center that the sacral and buttock wounds had a foul odor and had developed to late-stage severity. The plaintiff was immediately hospitalized and the pressure sores debrided.

The plaintiff maintained that she was not repositioned as required. The nursing home produced no records documenting that repositioning occurred on a consistent basis. The defendant maintained that regardless of the records, it was likely that the nurses—who knew it was required to reposition the patient at regular intervals—did so. The plaintiff further maintained that proper nutrition was essential in combating the bed sores. The plaintiff asserted that there was no nutritional assessment conducted by the defendant nursing home until the plaintiff had been a resident for seven days. The plaintiff also pointed out that although the defendant nursing home records reflected that the sores continued to deteriorate during the time the plaintiff was a resident, she was not seen by the nursing home physician.

The defense contended the facility acted at all times within the law and the standard of care, but there were some documentation issues with the care. The defense also contended that the plaintiff, who died just before trial, passed away as a result of dementia caused by strokes, coupled with her Alzheimer’s disease, which caused spontaneous pressure ulcers, and that no amount of care would have prevented her death or a negative outcome.

Evaluation and Verdict: “The lack of documentation regarding the care, treatment, and communication about the deteriorating pressure sores and nutritional needs makes the case nearly indefensible for the nursing home,” say Adelman and Milenski. “The wrongful death claim is relatively remote in time, so the damages will likely derive largely from the pain and suffering and medical specials for the progression of the ulcers and any related treatment. A reasonable verdict would be around $600,000, but there is a risk the jury will determine the death was caused by the pressure sores, which could dramatically increase the verdict. A runaway verdict is a huge concern, especially in California.”

Following a jury trial, the jury awarded the family $3.9 million for the decedent’s pain and suffering and $250,000 for the loss of her companionship. The judge had already placed a $250,000 cap on the pain and suffering verdict under a state law that limits medical malpractice awards. The jury went on to award a stunning $23 million in punitive damages to the plaintiff. Of note, the nursing home filed 29 motions to exclude evidence to the plaintiffs’ one motion to exclude evidence, apparently to no avail. Additionally, the nursing home filed five substitutions of attorney over the course of nearly four years of litigation.

Case Four: Medical Malpractice in New York

In this case, the plaintiff was a 72-year-old woman who needed follow-up treatment for three “superficial” bedsores when she was discharged from a local hospital to a nursing home. Instead of getting better, the sores worsened, became infected, and eventually, a bone in her lower back was exposed as a result of one of the bedsores. The plaintiff alleged that the medical staff at the nursing home did not follow the care plan developed by the plaintiff’s doctors at the hospital, which instructed the nursing home staff to turn the plaintiff over every two hours. According to medical experts who testified during the trial, following this simple instruction would have healed the minor bedsores within four-to-eight weeks. Medical records at the nursing home show that the plaintiff was not visited by a doctor a single time after being released by the hospital.

When the nursing home staffers finally noticed the gaping pressure ulcer, the plaintiff was immediately admitted to the hospital. At that point, one of the bedsores was so severe and deep that it required surgery and, even after the surgery, took two years to heal completely. The plaintiff still described the sore as extremely painful, even after two years. Counsel for the plaintiff said he was initially told by attorneys assigned to the case by the nursing home’s insurance company that the insurer “would never pay a dime on this case.”

Evaluation and Verdict: “These injuries should have easily healed since the plaintiff was a younger woman, relatively speaking,” says McNee. “Moreover, proper nutrition could have made a big difference, as well. It also appears that there was no use of a specialty mattress, which could have been an issue as well. All of these factors show a consistent deviation from the standard of care. Since the plaintiff was treated for two years, she will likely recover a significant verdict. There don’t appear to be facts supporting punitive damages, but even so, a verdict in the range of $1-$2 million would not be unexpected, largely to compensate for the significant pain and suffering this patient experienced.”

McNee was close. The Niagara County, New York jury awarded a total $1.25 million: $475,000 for past pain and suffering; $300,000 for future pain and suffering; and an additional $475,000 for violating a state public health law that requires special protections for nursing home residents.

Putting It All Together

None of these outcomes came cheap; all were seven-figure verdicts. As expected, California produced the largest verdict, but even Georgia and Colorado—not necessarily known for being hotbeds of litigation—produced sizable verdicts. The largest verdict occurred in a case involving a decedent who had multiple underlying health issues, but even then, the jury did not care. It appears that deviations from the standard of care speak in loud volumes to juries, who will consider big payouts when the deviations can be proven to result in serious illness or death.

In a few of the cases, we see that efforts to resolve the case were unsuccessful, and the defense passed up a couple of good deals that could have saved millions. Hindsight is always 20/20, but the lesson here is that settlement value may be more than we might estimate in other cases. Juries are likely to sympathize with elderly plaintiffs, whether they see themselves or their loved ones in these situations, and that is likely to lead to higher exposure as more and more people use the services of senior care facilities. These facilities would be wise to implement procedures that ensure all residents receive care that does not deviate from community standards, and, as importantly, that good documentation of treatment is kept to prove compliance with the standard of care.



Teresa M. Beck is co-chair of California litigation, chair of Arizona litigation, at Buchanan Ingersoll & Rooney LLP. teresa.beck@bipc.com

Benjamin Cobb is an associate at Buchanan Ingersoll & Rooney. He can be reached at benjamin.cobb@bipc.com.

Top Industry News

Powered by : Business Insurance


Crawford