South Carolina Nursing Home Blog : South Carolina Nursing Home Lawyer & Attorney : Poliakoff & Associates Law Firm : Elderly Care, Senior Care

The Toldeo Blade reported a significant verdict in a recent nursing home trial in Michigan.  The family of Burr Needham,  who died in 2002 of a morphine overdose while undergoing physical therapy at Mercy Memorial Nursing Center, has been compensated $4.85 million by a jury aftera three-week trial with the jury finding that a doctor and nurses were negligent.

Mr. Needham's family filed a civil lawsuit in 2005 against the home, contending that Dr. Arun Gupta and five nurses were responsible for the overdose of the painkiller administered to Mr. Needham after he entered the center April 26, 2002. 

The Wayne County medical examiner said the May 2, 2002, death of Mr. Needham was caused by acute morphine intoxication and ruled his death a homicide. The jury determined that nursing home staff were professionally negligent in the care and treatment of the 76-year-old man.

Court records showed that the jury awarded $3 million of the judgement to Mrs. Needham for the noneconomic loss of society and companionship she experienced in the loss of her husband. 
The panel decided that Mr. Needham should get $1.5 million for the pain and suffering he experienced in the nursing home. The remaining $350,000 was awarded to the family to pay for damages that Mrs. Needham incurred, including burial costs and the loss of gifts and valuables she would have received until her death on Oct. 24, 2007.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

WKYT News reported on the verdict of a nursing home negligence trial in Kentucky.  The jury determined that an aide at the Hillcrest Center was responsible for abusing resident Grace Fugate.   Fugate sued Hillcrest Nursing Home claiming an act of negligence changed her life forever.

She moved into the nursing home in July 2003 for short term rehab and recover from knee surgery. But on August 9th, when she needed help going to the restroom, the aide came in and  told Grace she knew she could transfer herself, that she was ‘busy, she had other things to do, get up and get to the potty.  Grace eventually attempted to move and reach the restroom herself. Her still mending knee could not handle the strain, however, and she ended up falling. 

She eventually lost so much blood after the fall that she had to be resuscitated at a local hospital. Fugate then fell and damaged her knee even worse.  The injury was so bad that 6 years later she lost her entire leg.  The aide that refused to help her get to the bathroom was uncertified and showed a history of poor work habits.

A Laurel Circuit Court jury agreed with Fugate and compensated her more than $7 million in damages.  Fugate wants to hire a nurse and move into a private home.

See article here.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In Peterson v. Residential Alternatives of Illinois, Inc. , No. 3-09-0743 (June 7, 2010) Peoria Co. (WRIGHT), the 3rd District reversed the circuit court’s dismissal of the case based on an arbitration agreement.  In Peterson, the nursing home had the legal representative sign two contracts on the same day--one for nursing serives and one an arbitration agreement waiving Plaintiff's constitutional right to a jury trial.  The Court held:

"At the time of their agreement pertaining to nursing home care for Terhorst, the parties could have easily utilized terminology requiring arbitration, but they did not incorporate this language into the nursing home care contract. In fact, the seven-page nursing home care contract, dated November 29, 2006, specifically states that the nursing home care contract consists of seven pages. Within those seven pages, the nursing home care contract does not restrict litigation to nonjury trials or require arbitration.

We construe this silence as deliberate, intended, and consistent with both existing case law at the time of the agreement and the provisions of the Act (210 ILCS 45/3-606, 3-607 (West 2006)). Based on the circumstances of this case, we conclude that the conspicuous absence of language requiring arbitration constitutes "a contrary contention" that defeats defendant's request for this court to construe both documents executed on the same date as one agreement. See Sandra Frocks, Inc. v. Ziff, 397 Ill. at 504."

The Court concluded: " The case law provides that an enforceable contract must be premised on language that is definite and certain as to all essential terms. Academy Chicago Publishers v. Cheever, 144 Ill. 2d 24, 30 (1991). Thus, we conclude the Agreement does not contain a clearly expressed intent to arbitrate controversies arising out of the separate nursing care contract."

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Sacramento Bee had two articles here and here about the jury's verdict against Colonial Healthcare and its parent company, Horizon West of Rocklin.  The jury found that the nursing home committed elder abuse in the death of a woman in 2005.  After deliberating fewer than two days, the jurors unanimously agreed that Defendants were responsible for the death of Frances Tanner.

They awarded $1.1 million in damages for Tanner's pain and suffering and for her daughter Elizabeth Pao's loss of companionship. They also decided that the home's conduct was "malicious, oppressive or fraudulent," therefore punitive damages may be awarded also.  The jury will hear further testimony about the corporation's finances before deciding on punitive damages.

Tanner was 79 years old, spirited and mobile but suffering from mild dementia, when she moved into the home in March 2005. Seven months later, after a preventable fall caused by neglect that resulted in a broken hip, she was dead from an infected bedsore.  Jurors heard evidence of chronic understaffing, poor medical documentation and corporate greed. One former Colonial staffer said he would not place a relative at the home.  Colonial and Horizon put profits before good patient care.

Colonial, which recently changed its name to Hilltop Manor, has a history of problems with state regulators. The Tanner case was the fourth in recent years in which the home was cited in the death of an elderly patient.

"We have a corporate culture here that is callously indifferent to human life," Sacramento attorney Ed Dudensing said in closing arguments this week.  "They value money but not patient care."

Colonial "recklessly failed Frances Tanner in every way conceivable," Dudensing said, including allowing her to endure a fractured hip, keeping poor notes on her care and missing the skin condition that killed her.

One advocate, Carole Herman of Foundation Aiding the Elderly, said lack of proper staffing may be the most critical issue facing nursing home patients and their families.

Here and here are two article reporting the $28 million puntive award verdict.   "The jurors obviously felt that this is what they needed to do to send the message, to attempt to deter future bad conduct," Dudensing said. 

They decided on punitive damages after hearing evidence about the corporation's finances.  Horizon West is worth about $200 million. He suggested $10 million would be an appropriate punitive award for the chronic understaffing and inadequate care that he said led to Tanner's death.

Read more: http://www.sacbee.com/2010/05/14/2749834/nursing-home-ordered-to-pay-28.html#ixzz0nubuVtAc
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Bureau of Justice Statistics issued a Special Report on the number, type, and resolution of civil trials in the United States.  Some very interesting data is contained in the report.

Major findings from the 2005 Civil Justice Survey of State Courts include—
• A jury decided almost 70% of the approximately 26,950 general civil trials disposed of in 2005.
• About 60% of the general civil trials included in the survey involved a tort claim and about a third involved contractual issues.  Most of the tort cases involved motor vehicle accidents.
• Plaintiffs won in almost 60% of trials overall.
• The median damage award for plaintiffs who won monetary damages in general civil trials was $28,000.
• Punitive damages were awarded to only 5% of plaintiff winners in general civil trials in 2005.
• In the nation’s 75 most populous counties, the number of general civil cases disposed of by jury or bench trial declined by about 50% from 1992 to 2005.

Almost two-thirds (62%) of all plaintiff award winners were awarded $50,000 or less. A small percentage (about 4%) of all plaintiff award winners were awarded $1 million or more.

There were only 2,449 trials involving medical malpractice which amounts to 9.1%.  This is interesting since we know there are 100,000 deaths caused every year from medical malpractice.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Ohio Supreme Court has enacted a monumental change that impacts doctors and patients, shifting malpractice judgments from doctors’ insurers to the taxpayers.  More info at WCPO.  The decision limits recovery, ignores the right to a jury trial, and promotes injustice and inadequate compensation. The ruling means your private doctor can make a serious medical mistake - take off the wrong leg, operate on the wrong side of your brain - and you can never sue him in a jury trial.   No other state has ruled the same way. 

The Theobald ruling was named after Keith Theobald. Theobald was a healthy, fit husband and father of two young children, when an elderly driver clipped his pickup truck as he was driving to work 11 years ago. The impact flipped the truck across all lanes of the highway into a field, crashing in a stand of trees. Rescue workers found Theobald hanging upside down in a tree. He was paralyzed from his chest down.

Theobald and his wife, Jacqueline, took the news in stride. “I remember pre-operatively we said, ‘You can still do basketball with Jake (his then 5-year-old son) and watch TV and share things with the kids. We’ll get a van and we’ll adapt it.’” Keith Theobald agreed. He felt he could still work and live a full life. “I could do about anything. The wheelchair doesn’t hold you back.”

Theobald could see and use his arms after the accident. He was alert and ready the next day when doctors at University Hospital suggested surgery might improve his back injury.

Instead, he woke up in a different world. Not only was he still paralyzed, but now he also was blind and had lost the use of his arms.  Medical records prove a series of mistakes during surgery led to oxygen deprivation and injuries worse than the accident had caused.

Trapped in darkness and unable to move on his own, Theobald will need round-the-clock care the rest of his life. He sued the doctors who did the surgery, only to get this devastating shock: The doctors weren't liable. They had immunity from all malpractice claims because they had students in the room with them.

In the Theobald case, the Ohio Supreme Court ruled that doctors who sign with a state university like the University of Cincinnati to let medical students learn from them, even if that just mean one student walking in the room for a second, now are considered state employees. As such, they get immunity if anything goes wrong on the job, even in their private practices.

Jacqueline Theobald says, “The state didn’t come in and take care of Keith. The university didn’t come take care of him. This doctor took care of him. We’re suing the doctor.”

But the Ohio Supreme Court said they couldn’t sue the doctor because some students were allegedly in the operating room, the doctors were teaching per their State of Ohio U.C contracts. Therefore those doctors were not liable for any mistakes. Instead, the Supreme Court ruled that the Theobalds belonged in the Court of Claims, a separate court set up in 1980 to handle suits against the state, usually against public state employees like highway workers, never before used to protect private doctors in their private practices.

The Court of Claims has no juries. Single judges, hired by the state, issue rulings for or against the state. The top award is $250,000, no matter the severity of the damages. Most importantly, the taxpayers foot the bill, not doctors’ malpractice insurers who must pay when suits are filed in county courts of common pleas.

Of course, Keith Theobald never knew to ask if a student would be watching his operation, and if so what the impact might be. But if you think doctors from now on will have to tell patients and get consent to have students in the room, you’d be wrong. The Supreme Court ruled the law doesn’t demand disclosure. No one has to inform patients they could lose their rights to sue the doctors without ever knowing it.

Keith Theobald hasn’t lost hope for a medical miracle. But in the end, he never did get a chance at even the Court of Claims the Ohio Supreme Court said he should access. That’s because the same state attorneys for U.C. who argued that’s the court where the Theobalds belonged, now argued it was too late. The statute of limitations had passed. No recovery, not even $250,000, for Keith Theobald’s lifetime injuries.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The L.A. Times had an interesting article about how the recession has changed the attitude of jurors.  The article was depressing.  Citizens of this great country were refusing to do their civic duty. Jury duty is one of our civic duties. 

Paying taxes, registration for the selective service, and jury duty are the only obligations that the government imposes on its citizens.  In return for these obligations, we have a country with a strong military, freedoms to practice religion and speech, and the right to participate in governance.  The first and most important concept is the role of the jury. The job of the jury is to answer questions of fact as presented by the evidence in the case.  The jury determines the validity of the evidence as it may apply to the law as explained by the judge.  The jury also must be able to judge the credibility of witnesses that testify before the court. While an attorney in a case may attempt to present evidence in a certain light, they are only presenting their view of that evidence. The opinion of the evidence that matters is the opinion of the jury. The concept of the fair and impartial jury of one's peers is paramount to our legal system. To be fair and impartial, members of the jury need to be intellectually honest. That means they must be able to evaluate the facts presented in the trial without prejudice.

In this time of double-digit unemployment and shrinking benefits for those who do have jobs, courts are finding it more difficult to seat juries for trials running more than a day or two. Reluctance has escalated into rebellion, experts say.  Money woes inflicted by the recession have spurred hardship claims, especially by those called for long cases, say jury consultants and courtroom administrators.

More than a quarter of all qualified jurors were released on hardship grounds last year, according to court statistics. And judges say they have seen more people request such dismissals in the last year.  With shrinking budgets, courts are under pressure to do more with less. Los Angeles County courthouses were summoning 55,000 people a week, at $15 a day each, until the economic crisis imposed more belt-tightening. The county is now making do with 45,000 summonses a week -- only about half are even answered -- compelling stricter scrutiny of those claiming financial, medical and child-care problems, Gomez said. The county has also tightened sanctions for repeat no-shows, imposing fines of as much as $1,500.

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

McKnight's had an article about a decision in Colorado regarding the enforcement of an arbitration clause in a nursing home case.  The Colorado court ruled that a healthcare proxy does not have the authority to sign an arbitration agreement on behalf of a nursing home resident.  Under Colorado law, a healthcare proxy is only empowered to make medical decisions on behalf of another, including “provision, withholding, or withdrawal of any health care, medical procedure, including artificially provided nourishment and hydration, surgery, cardiopulmonary resuscitation, or service to maintain, diagnose, treat, or provide for a patient's physical or mental health or personal care,” the Bureau of National Affairs reported.

In the case of Lujan v. Life Care Centers of America, Colorado, Alvin Lujan signed an arbitration agreement, waiving jury trial rights, when admitting his mother, Estella Lujan, to the Life Care Centers of America nursing home. She died three days later, and a wrongful death claim was filed against the facility. Life Care Centers argued that admission to a nursing home is a medical decision and, therefore, the Colorado law applies.  But the Colorado Court of Appeals determined that the signing of an arbitration agreement does not fall under the specific definition of the authorities given to a healthcare proxy. As a result, the Lujan family had the right to sue the facility.

In October, the Nebraska Supreme Court arrived at a similar decision regarding the roll of patient surrogates
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Aboutlawsuits.com reported a recent jury verdict in a nursing home case in California.  The jury compensated the resident more than $1.3 million, finding that the injuries she suffered were a result of nursing home neglect.  The case involved a preventable fall.

Elaine Stinson, who suffered from Alzheimer’s disease and was recovering from a recent hip surgery, was allowed to fall at Leisure Palms nursing home in Fallbrook, California. As a result of the fall, Stinson suffered a punctured lung, broken ribs and head contusion. The staff did not contact Stinson’s doctor or family, and no medical treatment was provided until after her husband found her unresponsive during a visit the next morning.  Stinson spent 10 months recovering from the elder neglect injuries at a different nursing home.  The staff at the facility was not properly trained and failed to provide the proper level of care given a prior determination that she had a high risk of falling and wandering.

Stinson suffered three other falls at the nursing home. The verdict in the nursing home neglect lawsuit included $88,000 for past medical bills, $500,000 in general damages and $750,000 in punitive damages.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Consumer Affairs had a revealing article about the dramatic decline of medical malpractice payments to victims of malpractice.  This proves once again that there is no need for tort reform or taking away consumers rights to a jury trial and adequate compensation.

The article mentions that medical malpractice payments were at or near record lows in 2008.  A study released by Public Citizen suggests the decline indicates that a lower percentage of injured patients received compensation, not that health safety has improved.

Medical malpractice is so common, and litigation over it so rare, that between three and seven Americans die from medical errors for every one who receives a payment for any malpractice claim, according to Public Citizen’s analysis of medical malpractice payment data and the best available patient safety estimates.

For the third straight year, 2008 saw the lowest number of medical malpractice payments since the federal government's National Practitioner Data Bank began tracking such data in 1990. The 11,037 payments in 2008 were 30.7 percent lower than the average number of payments recorded by the NPDB in all previous years.

Ratios of payments per capita and per physician have fallen even lower compared with historical norms. There were 13.5 payments per million physicians in 2006 (the most recent year for which the number of physicians is available), which is 29.2 percent lower than the average in previous years

The value of payments in 2008 (as distinct from the number of payments) was the lowest or second lowest on record, depending on the method used to adjust for inflation.

The cost of the medical malpractice liability system -- if measured broadly by adding all malpractice insurance premiums -- fell to less than 0.6 percent of the $2.1 trillion in total national health care costs in 2006.

The cost of actual malpractice payments fell to 0.18 percent -- one-fifth of 1 percent -- of all health care costs in 2006. Annual malpractice payments have subsequently fallen from $3.9 billion in 2006 to $3.6 billion in 2008.

"Any way you measure it, medical liability accounts for less than 1 percent of the country's health care costs, and the vast majority of victims receive no compensation whatsoever," said David Arkush, director of Public Citizen's Congress Watch division. "These are people who died or were left with serious permanent injuries -- out of work, with enormous medical costs for the rest of their lives -- and they and their families are getting nothing from the doctors and hospitals responsible."

Despite the hysteria surrounding debates over medical malpractice litigation, experts have repeatedly concluded that several times as many patients suffer avoidable injuries as those who sue.

The best known such finding was included in the Institute of Medicine's (IOM) 1999 study, "To Err Is Human," which concluded that between 44,000 and 98,000 Americans die every year because of avoidable medical errors.    Fewer than 15,000 people (including those with non-fatal outcomes) received compensation for medical malpractice that year, and in 2008, the number receiving compensation fell to just over 11,000.

The Joint Commission learned about 116 occasions in which surgeons operated on the wrong part of a patient’s body in 2008 and 71 times in which foreign objects were left inside patients’ bodies. Health experts call these "never events," meaning that they simply should not happen at all.

• Email This
• Print
• Comments
• Trackbacks
• Share Link