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

The South Carolina House has passed another "tort reform" measure which is not necessary, most likely unconstitutional, and clearly arbitrary.  The Sun News had an article and it is very interesting what critics and proponents said.  The bill will place an arbitrary cap on how much a jury could award against reckless or intentional conduct.  The measure limits the amount juries could award to deter or punish a business for gross negligence. Punitive damages could be $350,000 or three times compensatory damages, whichever is greater.  The purpose of punitive damages is to deter or punish.

Opponents said multi-million-dollar lawsuit awards are extremely rare in South Carolina.  The executive director of the South Carolina trial lawyers' association said a review of verdicts from courts in the state's three largest counties - Richland, Charleston and Greenville - shows how extraordinary it is for a jury to award punitive amounts at all in this state. Of the 136 personal injury verdicts in those counties in 2007 and 2008, juries awarded punitive damages in seven of them, and only two of those involved more than $7,000, said Mike Hemlepp, executive director of South Carolina Association for Justice. He noted an amount seen as unfair could be decreased either by the trial judge or an appeal.

"Is there any evidence they're saying, 'We're not coming because of tort law?'" asked Rep. Bakari Sellers, D-Denmark. "Tort reform is something people want until it's their family member or friend who gets injured."

House Judiciary Chairman Jim Harrison, R-Columbia, acknowledged those numbers don't indicate a problem.

Rep. Doug Jennings, D-Bennettsville, argued punitive awards are meant to discourage companies and people from blatantly disregarding how their actions may injure others, but the limits mean they won't be discouraged from changing their ways.

Hemlepp said the measure is designed to squash cases from going to court. Civil lawsuits often involve clients who can't pay lawyer fees upfront, which means lawyers won't take frivolous cases. But since lawyers often get paid by taking one-third to 40 percent of the award, capping punitive damages means fewer cases will be taken.

The vote comes five years after the Legislature capped pain-and-suffering awards for medical malpractice lawsuits at $350,000.  Todd Atwater, CEO of the South Carolina Medical Association, said the rates of medical malpractice insurance are going down, as are the number of claims.

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PRWeb summarized a story from the NY Post about punitive damages against a nursing home in New York.   The New York Post reported that in December 2009, a Brooklyn nursing home was found guilty of negligence in the case of a patient who developed numerous and avoidable bedsores while under the home’s care. The jury awarded the patient’s family close to $4 million for pain and suffering, plus an additional $15 million as punishment for trying to cover up the poor patient care.

Elder abuse is prevalent in nursing homes around the country, and with serious consequences for patients. Older adults who are victims of elder abuse are more than twice as likely to die prematurely as are adults who are treated properly, according to a study published in the August 5, 2009 issue of the Journal of the American Medical Association.

Mistreatment can take many different forms, including physical, emotional, psychological or sexual abuse; neglect; withholding food and water; or denying visits from family and friends.  Family members and friends of nursing home residents must be vigilant in looking for signs of possible abuse or neglect.  These can include personality changes, depression, anxiety, unexplained or unusual bruises and injuries, rapid weight loss, poor grooming, and potentially unsafe conditions.
The National Center on Elder Abuse defines institutional elder abuse as “any of several forms of maltreatment of an older person by someone who has a special relationship with the elder (a spouse, a sibling, a child, a friend, or a caregiver)” that occur in residential facilities for older persons, including nursing homes. Its website, www.ncea.aoa.gov, explains that “perpetrators of institutional abuse usually are persons who have a legal or contractual obligation to provide elder victims with care and protection (e.g., paid caregivers, staff, professionals).

Looking exclusively at falls, the Centers for Disease Control and Prevention noted that an average nursing home with 100 beds reports 100 to 200 falls each year, representing up to 75 percent of residents. Many falls were caused by environmental hazards like wet floors, poor lighting, incorrect bed height and improper wheelchair use.

A November 2009 report from the University of California, San Francisco, stated that 26 percent of the nation’s nursing facilities were cited in 2008 for poor quality of care, 44 percent of nursing homes failed to ensure a safe environment for residents, 36 percent had food sanitation regulations violations and 33 percent of facilities received deficiencies for failure to meet quality standards.

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Fox News ran a NY Post article on the verdict against a Brooklyn nursing home.  Brooklyn Queens Nursing Home will have to compensate the family of a 76-year-old patient neglected so badly that he left with more than 20 bedsores. The verdict of nearly $19 million, handed down by a jury, is the first in the state against a nursing home that includes punitive damages.

"It was horrible," said Margaret Whitehurst, who pulled her father, John Danzy, from the home after just nine months. "He walked in on two legs and a cane. He was 237 pounds. When we got him back, he was 148 pounds and he had holes all over his body."  She and her siblings moved Danzy, a retired truck driver and butcher, to another nursing home. He died as a result to an infection caused by the bedsores.

A Brooklyn jury deliberated two full days following the four-week trial before finding the Cypress Hills facility delivered substandard care.  The panel awarded $3.75 million for Danzy's pain and suffering, but tacked on $15 million in punitive damages, based in part  that the home had doctored records to try to cover up the neglect.

An FBI expert testified that about 100 different skin-check notes showing "G" for "good" had been penned over to show "B" for "broken" — an effort by the home to claim it hadn't missed the horrific sores.  "Someone went back and wrote B's over the G's to cover their tracks, so they falsified the records, he said. "We believe that once they found out they were being sued, they went back and said, 'How could we have G's here when they guy has 20 sores?' "

The nursing home restrained the Alzheimer's-stricken Danzy to keep him from wandering off, but left him alone for long periods.  Medical standards require that bedridden or restrained patients be moved every two hours to prevent such sores, but that Brooklyn-Queens only moved Danzy every four hours — if at all.

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 Louisville Courier-Journal had an article about the recent jury verdict against ResCare Inc. A jury in Albuquerque, N.M., returned a damage award of about $54 million against ResCare Inc. over the rape of a disabled male resident in one of the company’s group homes.  After a three-week trial, the jury unanimously found ResCare negligent, Bettinger said. The company was ordered to pay nearly $5 million in actual damages and more than $49 million in punitive damages.

Carl Bettinger, an attorney for the plaintiffs, said the incident occurred a few weeks after ResCare fired nine of the 12 employees of its group home in Roswell, N.M., because they failed or refused drug testing. Bettinger said in an interview that ResCare’s now-defunct New Mexico subsidiary “scrambled” to hire new staff for the home. One of the new hires had been fired from his last job, where he had been found kissing a male resident, Bettinger said. ResCare didn’t call that employer to check on the new worker before hiring him.

The man worked one night at the ResCare facility. That was the night the resident was abused, Bettinger said.  No eyewitnesses came forward.  Physical evidence was lost when the resident was showered the next day.

The award surpasses the $36.6 million profit earned in all of last year by ResCare, one of the nation’s largest providers of residential care to persons with disabilities.

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Ventura County Reporter had an article about the recent verdict involving abuse of a resident in a nursing home.  A  jury compensated the family of a 71-year-old stroke victim who filed an elder abuse lawsuit against the Fillmore Convalescent Center.  The trial, which featured a videotape of the woman being abused, lasted 22 days. The jury deliberated for two days before announcing the verdict: $2.75 million in actual damages and $5 million in punitives.  The verdict splits liability among three defendants: the center, 40 percent; owner Eduardo Gonzalez, 40 percent; and Garcia, 20 percent.

Johnson said he offered to settle the case with the center in July for $500,000.   “They never offered me one dime,” he said. “They never offered to go to mediation, nothing. There was a lot of arrogance.”

In 2006, Maria Arellano, 71, was a resident with brusies of unknown origin that family members discovered during a visit. They complained to management but the nursing home refused to  investigate. So the family set up a hidden video camera on a side table in her room.

The camera caught employee Monica Garcia slapping Arellano, pulling her around by the hair, bending her neck, fingers and wrists, and treating her violently in a shower chair.  During the ordeal at the center, the Arellano family met another resident, Daniel Sanchez, 83, who was staying across the hall. His family suspected he, too, was being abused.

“The Sanchez family, they found bruises and hair pulling,” said Johnson, who’s filed a lawsuit on the family’s behalf that is slated for trial in January. “Mr. Daniel Sanchez has since died. They (Arellano and Sanchez) were both stroke victims who were non-verbal.”

About two weeks ago, Fillmore Convalescent received a five-star rating, the highest, from the Nursing Home Compare system, run by the Centers for Medicare and Medicaid Services.

“The five-star rating doesn’t always reflect what’s going on today or what went on yesterday,” Stein said.

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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.

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An Arizona jury awarded a landmark verdict of $11 million to the widow of a 36-year-old man with traumatic brain injury who died after ingesting foreign objects while in the care of Liberty Manor Residency, a Phoenix assisted living facility. The verdict included $2 million for the decedent, $5 million for the wife and $4 million in punitive damages. It was the largest verdict ever awarded against an assisted living facility in the United States.

Earl Scherrer suffered a severe traumatic brain injury as a result of a car accident in 1996.  He lapsed into a coma and was not expected to recover.  Despite doctors' assessment that Mr. Scherrer's condition was permanent, Lydia Scherrer refused to disconnect her husband's life support.  Earl Scherrer remained in a coma for 16 months before he began to slowly emerge.  With his wife's nurturing and support, he slowly started to speak, albeit slowly.  Mrs. Scherrer worked with her husband day after day, using first-and second-grade reading and math textbooks and other elementary learning tools to stimulate his brain function and coax him to reach his full potential.

Lydia Scherrer devoted many hours per week to her husband's recovery, but she also had to work and was forced to turn to assisted living and residential facilities to provide the 24-hour care her husband needed. For years, she visited him faithfully on her days off, every Tuesday and Wednesday, checking him out of the facility and taking him home.

On April 7, 2006, Mrs. Scherrer placed her husband in Liberty Manor Residency, a facility that purported to provide 24-hour supervision of its residents.  One month later - on May 7, 2006 - she received a call saying her husband had been vomiting.  Mrs. Scherrer rushed over to Liberty Manor, brought her husband home and gave him a bath. Within a matter of minutes, he began vomiting black matter and died in her arms.

Autopsy results showed a number of items - including plastic bags, unopened catsup packets, candy wrappers and paper towels - were found in Earl Scherrer's stomach and small intestines. The medical examiner determined these foreign objects were significant contributing factors to his death. The autopsy read in part, "hypertensive heart disease due to mechanical obstruction of the GI [gastrointestinal tract] from the foreign objects."

Lydia Scherrer brought claims against Liberty Manor for abuse and neglect, wrongful death and punitive damages.

At trial, it came to light that Liberty Manor made numerous false entries in its charts with respect to Earl Scherrer's care, including notations of care on days when Mrs. Scherrer had checked him out of the facility.  Liberty Manor was also unable to produce Mr. Scherrer's alleged caregiver, an employee named Raul.

"Lydia Scherrer did not walk away from her husband, in life or in death," said her attorney, Craig Knapp. "Her hope is that this verdict will force the assisted living facility industry to set and meet higher standards of care for their residents, resulting in enhanced protections for the defenseless individuals trusted to the care of others.

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Multimillion verdict against Life Care thrown out (09/26/08 Cleveland Banner) By Linda Womack

Life Care Centers of America was given another trial when an $11.5 million verdict was thrown out.  The nursing home was found to have been negligent and reckless in the death of a former resident. Former Circuit Court Judge Ginger Wilson Buchanan was the judge.  Buchanan did not offer a reason on why the original verdict was set aside.

A Bradley County Circuit Court jury awarded the multi-million verdict in compensatory and punitive damages as a result of the June trial. Dennis Matthews, son of Verdie Matthews a former Life Care resident, filed a lawsuit against Life Care Centers of America alleging the nursing home allowed his mother to develop severe dehydration and severe malnutrition which ultimately played a role in her death.   The jury found Life Care Centers acted negligent and reckless in a three week trial in June.

Ms. Matthews was a resident at the nursing home for four weeks when she was admitted to the Bradley Memorial Hospital on May 1, 2006. She died three days later. Her cause of death was determined by the hospital to be severe nutrition and severe dehydration.

Medical records indicated at the time of Ms. Matthews admission to the nursing home her weight was reportedly 105 pounds. At the time of her death, four weeks later, she reportedly weighed 92 pounds.   Throughout the trial Mr. Matthews' attorney, Thomas Hornbuckle, argued the nursing home falsified fluid and nutrition intake records for Ms. Matthews and did not properly feed and hydrate her.

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A jury found Life Care Centers of America guilty of negligence. The jury awarded $1.5 million in compensatory damages to the family of a former resident who died as a result of the nursing home's neglect and negligence.

Life Care Centers of America was sued by Dennis Matthews, son of the late Verdie Matthews. He proved the nursing home allowed Mrs. Matthews to develop severe dehydration and malnutrition which caused her death. 

Thomas Hornbuckle, attorney for Matthews, alleged the nursing home intentionally acted recklessly by falsifying fluid and nutrition records of Mrs. Matthews. Hornbuckle said evidence and witnesses had proved Life Care acted negligently and was at fault in the death of Mrs. Matthews.

Mrs. Matthews, 83, was a resident of the facility from the beginning of April 2006 to May 1, 2006. She was admitted to Bradley Memorial Hospital on May 1, 2006, and died on May 4, 2006. Medical records indicate at the time of admission to the nursing home Mrs. Matthews weighed 105 pounds. At the time of her death four weeks later, she weighed 92 pounds.

Attorney Steve Hornbuckle confirmed the jury found Life Care Centers guilty of negligence in contributing to the death of Mrs. Matthews.   The jury also found the nursing home acted "recklessly," according to Hornbuckle.

The jury will reconvene Monday morning to deliberate on awarding punitive damages. Both attorneys will be given a chance to argue the case.

Jury will decide punitve damages.

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Kathleen Glanville, a writer for The Oregonian, wrote an article about a $900,000 verdict for a resident who was treated ridiculously bad by a nursing home.  The jury ruled that an 86-year-old woman with Alzheimer's disease suffered a loss of dignity when Lake Oswego police forced her to the floor of her nursing home and handcuffed her.   The jury awarded more than $900,000 to the family of the late Elvera Stephan for the way she was treated the night of April 13, 2006, at The Pearl at Kruse Way in Lake Oswego.

The jury agreed that Avamere Health Services, the corporate owner of the Alzheimer's care center, had acted with malice or reckless indifference.  Stephan's children moved her into the Alzheimer's care center in early April 2006 after her husband became seriously ill and was hospitalized. Within a few days she became agitated, wandering the nursing home barefoot in her pajamas, confused and, according to her caretakers, dangerously aggressive.

The staff notified a registered nurse in another part of the nursing home, who called the woman's doctor for guidance. He said Stephan should be taken to the emergency room for evaluation and medication.  The nurse called 9-1-1 to summon an ambulance, and because she told the emergency dispatcher that the patient was extremely aggressive, Lake Oswego police responded as well.

But jurors said she didn't look dangerous on a surveillance video from the nursing home. She was gesturing with a telephone receiver but didn't try to hit anyone with it.

Two officers forced the elderly woman to the floor, where they rolled her onto her stomach and handcuffed her hands behind her back. She remained on the floor on her stomach for six minutes until paramedics put her on a stretcher and took her to the hospital, according to Kocher. She returned to The Pearl the next day, when a nurse reported that her wrists were bruised.

A state investigator found the nursing home at fault for failing to assess the woman's condition and intervene in a timely manner.   Stephan's son, James, testified that he didn't learn about what had happened to his mother for six days, when he was told by the relatives of another patient at The Pearl.

The video of the police subduing the woman was played for the jury.   Kocher had asked the jury to award Stephan's family $1 million to send a message to corporations that care for Oregon's elderly and vulnerable.

The jury agreed on $4,200 in economic damages -- the cost of Stephan's shared room for a month -- and $400,000 in noneconomic damages. The jury then awarded $500,000 in punitive damages. Under state law, 60 percent of punitive damages go to the state victims assistance fund.

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