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

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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The Herald-News had an article about a recent jury verdict against Rosewood Care Center.  The jury awarded $51,000 and attorney's fees.    Resident Catherine Taylor died after suffering a huge bedsore that ate through her skin to the bone causing her death.  Taylor, who was 88 when she died in December 2004, was a resident of Rosewood in July and August 2004, On Aug. 19, 2004, Taylor, a former teacher, was taken to Provena Saint Joseph Medical Center and six days later "underwent a procedure to remove bedsores and treat bone infections brought on by her confinement to her bed and her exposure to urine and other bodily fluids during (her) care," according to the complaint against Rosewood.

"She had a hole in her backside the size of my fist," said Scott Pyles, the other attorney representing Taylor's estate.  And Pyles said the bedsore was the fault of the nursing home staff.

"Rosewood screwed up on 8/18 (2004)," he said. "Everybody who testified in this case has told you about it, and it caused Catherine Taylor's death."

"We feel vindicated that we proved that they did something wrong," said Frank Cservenyak, one of the attorneys representing Taylor's daughter, Mary Pat Barney, who was acting as the administrator of her mother's estate.

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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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TriState.com wrote a brief summary of the verdict in a recent nursing home trial.  The family of a woman, Tong Ashby,  who survived a two-story fall out of an Evansville nursing home window has been compensated.  The accident happened six years ago at Golden Living Center Woodbridge.

At the time, Mrs. Ashby was only 57 years old and a cognitively impaired woman.  She tried to leave the home to be with her family.  While doors and elevators were kept locked at the facility, the windows in her room were kept open.  She says one day a staff member left Ashby alone and she climbed out the window falling thirty feet.   She had a history of wandering and trying to go home.  Ashby survived the fall and now lives with her son in Lexington, Kentucky. The verdict awarded her more than $250,000.

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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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The St. Clair Record had an article about a Madison County jury compensating a plaintiff in a negligence trial close to $150,000 in damages.  Jurors deliberated late into the evening before finding for Paul Graves in his suit against Rosewood Care Center of Edwardsville.

The 2003 case was brought by Graves on behalf of his deceased father's estate.   Alfred Graves received inadequate care while at Rosewood Care Center of Edwardsville and that lack of care and violations of the home's own procedures led him to fall and break his hip.

The jury awarded Graves damages for his father's loss of life experienced, pain and suffering and medical expenses. The largest damages were for the loss of life the jury found Alfred Graves, the plaintiff's father, experienced after a fall at the nursing home in January 2003. Those damages totaled $75,000. An additional $30,000 was given for Alfred Graves' pain and suffering and over $44,000 for his medical and nursing expenses.

Rosewood argued that the fall was an accident that had nothing to do with the care Alfred Graves received.

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The Columbus Dispatch had an article about the tragic case of Peter Southard who died from a lack of water.  A mild stroke had left him debilitated, forgetful and always in need of water to drink. He died two days after leaving Whetstone Gardens & Care Center in 2005.  A jury found that his care was deficient and negligent and compensated his family for his wrongful death in the amount of $6.5 million.  Jurors found the nursing home solely responsible for Southard's death

"He could be told to take a drink of water and 10 minutes later forget the conversation," said Gerald Leeseberg, attorney for Southard's widow. "He lived moment to moment."

Diana Southard had cared for her husband since the stroke in 1984.   "After Peter suffered a brain aneurysm in 1984, my priority in life was taking care of my husband," Diana Southard said . "When I returned from this particular respite, I was devastated to see the shape he was in.

 She occasionally admitted him to a nursing home to give herself a break.  In May 2005, she took him to the Whetstone center.  When she returned 15 days later, she found the 61-year-old Navy veteran incontinent with clothes strewn about his room and a bloody rash on his groin from urine-soaked bedding.

"Two days later, he passed away as a result of the lack of care he received while I was away. I lost the love of my life." Doctors said he died of dehydration that caused kidney failure.

The nine-day trial included testimony from doctors who said the care at the nursing home fell below minimum standards and from aides who said they were never told of Southard's critical need for water.  A glass of water was left by his TV stand. But brain damage had left Southard both thirsty and forgetful, which meant that someone had to make sure he drank enough water by watching him do it.

Jurors awarded Southard $500,000 for his pain and suffering before death and $6 million to his wife, their two daughters and three grandchildren for compensatory damages and mental anguish.

Attorneys for Whetstone argued that the dehydration death probably was the result of diarrhea after he left the nursing home.   They also countersued Southard's primary-care physician, claiming negligent care and instruction.

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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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