Legal Review and Commentary
Jury awards $19.5 million against nursing home for failing to monitor resident with Alzheimer's disease
By Blake J. Delaney, Esq., Buchanan Ingersoll, Tampa, FL
News: An elderly woman suffering from progressive Alzheimer's sustained head wounds following a fight with another resident at her nursing home. The woman's injuries went undiagnosed for about three weeks until she slipped into a coma and eventually died from a blot clot in her brain. The family brought suit against the nursing home. They alleged that the facility failed to provide adequate nursing staff, supervision, and monitoring for a woman who was known to have a tendency to wander.
During the case, it was discovered that the woman had been involved in at least two other skirmishes with fellow residents during the weeks preceding the fight at issue and the nursing home had failed to tell the woman's family about these episodes as well. The family had selected the nursing home for their decedent because the facility held itself out as specializing in treating Alzheimer's patients. A jury returned a verdict of $19.48 million in favor of the plaintiff, consisting of $1.48 million in economic damages and pain and suffering and $18 million in punitive damages.
Background: A 77-year-old woman was admitted to the Alzheimer's special care unit of a nursing home. A little more than a year after being admitted, the woman was involved in a fight with another resident, during which she was knocked to the floor, sustained two deep bite wounds, and sustained a lump on her head. Following this incident, the woman became extremely lethargic and unresponsive. When her family visited three weeks later, the woman was sleeping face down on a table in the day room; the family was told that she had been sleeping constantly over the last few weeks, but that she was basically doing well.
The family visited the woman again two days later, at which point they called for a neurologist. The doctor examined the woman and determined she was in a coma. The neurologist recommended that she be transported to a hospital so that a computed tomography (CT) scan could be performed. The CT scan revealed two subdural hematomas, where blood was collecting on the surface of the brain beneath the brain's outer covering. Due to the high level of acute and chronic bleeding in her head, doctors determined that she was not a candidate for surgery. The woman died three weeks later. The medical examiner determined that the death was a homicide.
The woman's 84-year-old husband and other family members brought suit against the nursing home. They discovered that the fight between the woman and the other resident was not the first such skirmish involving their decedent. Indeed, just a few weeks prior, the woman had wandered into a male resident's room and was severely beaten by him. She had sustained severe bruising on her face and a cut lip, and she had to scream for help until staff from the nursing home intervened. A week after that, nursing home staff discovered large lacerations on the woman's arms, but they could not determine an explanation for them. The plaintiffs pointed out that at the time of her admission, the woman was known to have a tendency to wander and that her progressive Alzheimer's disease was known to make her violent and aggressive at times.
The woman's family alleged that the nursing home failed to provide adequate nursing staff, supervision, and monitoring and that such failures ultimately caused the decedent harm. They claimed that although they had chosen the nursing home due to its 24-hour supervision, staff trained in Alzheimer's, and 24-hour nursing care, the facility should have done more to screen violent patients. They also maintained that the woman should have received a neurological exam as soon as her health began to deteriorate. They also maintained that the facility had failed to follow orders of a staff physician, who had ordered a psychiatric evaluation a few days after the first fight and had ordered a transfer a couple of weeks after that. Finally, the plaintiffs claimed that the nursing home had violated state law by failing to report any incidents to the state of resident-on-resident violence, despite the long history of violence at the facility of another resident.
The nursing home claimed that the plaintiffs' decedent was the aggressor in her physical confrontations and that no evidence supported the family's contention that the hematomas were caused by the latest fight. After trial, the jury returned a verdict in favor of the plaintiff. It assessed $1.481 million in economic and noneconomic damages, as well as $18 million in punitive damages, against the nursing home.
What this means to you: "Psychiatric facilities have long recognized the need for superior staff training and extensive patient monitoring to ensure safety not only to the individual patient, but also to other patients, visitors, and staff," says Lynn Rosenblatt, CRRN, LHRM, director of quality and risk management at HealthSouth Sea Pines Rehabilitation Hospital, Melbourne, FL. This case goes to show, however, that psychiatric facilities are not the only facilities that might encounter a patient attempting to injure himself or another in a manner that could cause death. In fact, such an event could happen in any facility that accepts cognitively impaired patients, patients suffering from traumatic brain injury and encephalopathy, or patients withdrawing from drugs and alcohol who become violent and/or self-destructive.
As an example, another large jury verdict also from Bexar County, TX, was returned in February based on similar circumstances [Bexar County (TX) District Court, Case No. 1999-CI-17411]. In that case, an 81-year-old nursing center resident was viciously beaten by a mentally disturbed roommate. The evidence at trial showed that the roommate had been involved in approximately 30 assaults prior to his being moved in with the elderly victim. Only two days later, the roommate attacked the man with a water pitcher, a glass, and his fists. Although the victim lived for almost three years after the attack, the jury was convinced that he never recovered from the severe trauma he suffered as a result of the beating. Consequently, the jury awarded the man's estate $160 million in damages.
Such cases are not limited to assaults of this nature. In 2004, a 77-year-old nursing home resident was sexually assaulted by an 83-year-old man and fellow resident at a Jacksonville, FL, facility. When it was discovered that the perpetrator's criminal file was 13 pages long and included 59 arrests, including child molestation and sexual assault, CBS News ran a story on the incident ("Abuse in the Nursing Home," CBS News. Accessed at www.cbsnews.com/stories/2004/11/15/eveningnews/main655704.shtml). CBS News determined that 380 registered sex offenders in 37 states were living in nursing homes, a figure that does not even include other felons and unregistered sex offenders.
Despite the growing prevalence of stories such as these, Rosenblatt finds it not uncommon for a nursing home to never discuss the procedure for dealing with such events with the home's unit staff or medical staff. This lack of discussion causes inattentiveness to the inherent risks of the combative or abusive patient until there is a serious injury, she says. "In this case, the nursing home administration appears to have totally ignored the possibility that an episode like this could occur, as there was no emphasis on environmental controls and behavioral assessments," says Rosenblatt.
Even though the nursing home billed itself as capable of dealing with Alzheimer's patients by offering 24-hour nursing care, 24-hour super-vision, and trained staff, those are the basic requirements of any nursing home. For the nursing home to hold itself out as specializing in the care of Alzheimer's patients, Rosenblatt notes that "the so-called 'locked unit' should have been a great deal more." Specifically, the staff should consist of nurses and nursing aides who are competently trained in the care of patients with unpredictable behaviors. There also should be other staff capable of providing support services to the primary caregivers, such as an assigned case manager and a consulting psychiatrist or gerontologist who can prescribe and monitor medications.
Furthermore, Rosenblatt advises that patients should be screened carefully prior to admission. The intake process can establish whether a particular patient will fit in with the other residents already there, and it can provide clues as to how volatile an individual's behavior is. "This is where a good intake person can prove invaluable," Rosenblatt notes.
Nevertheless, the intake staff at a nursing home should not have to go it alone. Rosenblatt recognizes that a family interview can provide insight as to the resident's history to aid in the placement of a patient. Such an interview can go a long way in determining that the level of care required is compatible with the scope of services provided by the facility," says Rosenblatt. After all, the family is generally a reliable resource as to how violent the patient becomes and how predictable those outbursts are, and spouses are quite adept in compensating for the ever-increasing behavioral demands of a cognitively impaired partner.
Unlike acquired brain injury, which has a more sudden onset, Alzheimer's patients follow a relatively predictable course of decline mentally and physically, Rosenblatt says. "Living with such a patient on a daily basis causes the spouse to take preventive measures to protect their loved one and, frequently, themselves," she says. "These accommodations may serve well as a foundation in developing an individualized plan of care."
The nursing admission assessment should detail any physical evidence of violence, self-mutilation, and abuse. Rosenblatt recommends that photographs be taken, dated, and the patient's name be clearly written in an identifiable manner. Since these residents are generally long term, the photographs should be updated at least monthly or at any time an injury occurs.
"From a risk management perspective, such photographs provide documentary evidence as to injury and healing," says Rosenblatt. The photographs should be placed in the medical record. Mounting the photographs on a "check-off type" assessment sheet with some commentary as to how the injury occurred will allow the staff to review the patient's physical appearance from accurate historical data. "A special section of the medical record is particularly helpful as it provides quick and consistent access in an emergency," notes Rosenblatt.
In addition to capturing visual evidence of a resident's condition, ongoing documentation of the patient's responses to various situations is essential in planning for the patient's daily environment.
"It is the inherent responsibility of the facility assuming care of the patient to ensure that a complete record of the patient's physical and behavioral needs are documented and incorporated in a care plan that addresses everything from personal hygiene to nutrition to diversionary activities to medical and pharmacy management to personal safety," says Rosenblatt.
Had this nursing home completed an accurate and ongoing assessment of its residents, there possibly would have been some recognition of the recurring violent attacks that were perpetrated and steps taken to prevent serious injury.
A nursing home also has a responsibility to ensure that the needs of its patient are met by the abilities of the facility. Included within this is the duty to properly assess the patient when he or she meets with harm and to respond accordingly. "Why did this woman sustain repetitive injury without proper assessment and care?" questions Rosenblatt.
She speculates that the answer is because the staff was untrained in recognizing serious neurological injury, or that the staff callously disregarded the patient's obvious comatose state as she was now "quiet" and not nearly the problem she had been when "on the move."
"This line of thinking certainly could have contributed to an $18 million punitive damage award," says Rosenblatt.
Rosenblatt recognizes further problems with the conduct of the nursing home in this case. If the facility's staff was responsible for putting the patients to bed at night, Rosenblatt questions how licensed nursing personnel could overlook the obvious change in a patient's orientation and alertness? Further, the chain of events indicates that the patient in this case was not assessed after brawling with another patient and that assessment was not as continuous of a process as it should have been. Given that the injuries ultimately leading to the patient's death in this case were not the result of her first injury at the facility, it appears little was done at the home to assess how best to manage such unpredictable behaviors.
"Patient intervention conferences and medication management are the best means to assist the staff in managing behavioral problems. Even though sedation is frowned upon as a draconian measure, the use of medications to manage anxiety, hallucinations, and delusional behaviors is still a viable and effective option," notes Rosenblatt. Also of note is that the woman apparently did not receive appropriate examinations during her time at the nursing home. For example, no neurological exam was conducted as soon as staff members noticed that her health was deteriorating. Furthermore, the woman could have undergone a psychiatric evaluation, as a staff physician at the facility had ordered just a few days after her first skirmish with another resident. In fact, that same staff physician had ordered that the woman be transferred, apparently upon noticing that she was not receiving the appropriate level of care and treatment.
"The home's failure to follow through on physician orders evidenced an apparent wanton disregard for patient safety and well-being, constituting yet another reason that that the punitive damages award in this case was so large," Rosenblatt says.
Finally, Rosenblatt recognizes that most states require disclosure to the next-of-kin of any form of injury of any consequence that affects a resident of a nursing home. "The home should have contacted the family representative after the initial incident where the women wandered into another resident's room and was beaten," says Rosenblatt.
In addition, the violence that occurred here most likely would warrant reporting to the state Department of Children and Families. In some jurisdictions, where treatment in an emergency department setting is required, a police report also may be necessary. "Had the family been made aware of the situation, it possibly could have forced the home to take corrective action," notes Rosenblatt. She suggests there is little doubt that state reporting and/or police action would have resulted in some dramatic changes, possibly including fines levied against the facility.
A staff that is well educated in caring for the hostile, violent, and unpredictable patient is one that is in control. Control was lacking in the facility in this case as evidenced by the lack of limitations set on patients. It is a key factor in preventing injury by patients on themselves and other residents. "The apparent understaffing and undertraining of the staff, given the type of residents cared for, suggests that the administration embraced the commonly held belief that all that is required to care for Alzheimer's patients is a locked space," concludes Rosenblatt.
Reference
- Bexar County (TX) District Court, Case No. 2003-CI-13504.
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