Subject Matter: $29M California Verdict
Thanks to Michael LeVangie of Prout LeVangie, Sacramenta, CA for sharing the below information about the recent verdict in CA.
Some basic details follow. There are a number of appeal issues in this case, in our humble opinion. Not the least of which were in limine orders precluding the defense from mentioning the family is also claiming the subsequent provider where Ms. Tanner died, is responsible the same issues, in a binding arb our client was precluded from joining. The defense was also precluded from questioning any of the multitude of healthcare providers who saw Ms. Tanner as to their obligations to report suspected elder abuse and the fact none of them made such a report. We also have issues with a special verdict form we feel was inadequate, plaintiffâ€™s expert addressing staffing issues at trial after not being disclosed on the topic, and incoming information the jury was influenced by a newspaper article issued the day deliberations began which contained numerous inaccuracies and information concerning citations which were precluded as evidence in the trial. With that said, we have pending motions for remittitur on the underlying verdict to limit that recovery under 15657 (b) and 3333.2. We are alsop filing a motion for new trial on the punitive damage issue or in the alternative remittitur.
Frances Tanner was 78-year-old lady when admitted to Colonial Healthcare, Inc. (â€œColonialâ€) on March 1, 2005. Mrs. Tanner was previously resided at home with her daughter in Hawaii and son-in-law, who predeceased her. Upon the passing of her husband, plaintiffâ€™s daughter Elizabeth Pao became Frances Tannerâ€™s primary caregiver.
Colonial was informed Mrs. Tanner needed assistance with activities of daily living (i.e., dressing) and had some history of wandering. Due to wandering, Mrs. Tanner was admitted to the womenâ€™s secured unit at Colonial.
Mrs. Tannerâ€™s primary known diagnosis included Alzheimerâ€™s Disease. This was later updated to include dementia with psychotic features, depression and anxiety. She was admitted under the care of Dr. William Nesbitt. Her medications upon admission included Ativan (anxiety), Trazadone (depression and Seroquel (anti-psychotic). She was incapable of understanding her rights, and her daughter, Betty Pao, was her responsible party.
Upon admission, Mrs. Pao executed, on behalf of Frances Tanner, a Physician Order for Life-Sustaining Treatment (POLST) indicating that she desired Comfort Measures Only, no antibiotics except if needed for comfort, and no feeding tube/IV fluids (other than to assure comfort). Mrs. Tanner was seen by the attending Dr. Nesbitt on admission on March 1, 2005, as well as each month thereafter.
An Admission Nursing Assessment was created noting that Mrs. Tannerâ€™s skin was dry and fragile. She was able to ambulate and transfer with a 1-person assist, and was full weight bearing although she did exhibit an unsteady gate. She was assessed by Physical Therapy on March 1 who noted that she was steady indoors, and had no loss of balance noted. There was no indication of physical therapy services unless her gait worsened. Mrs. Tanner did not exhibit any pain and was noted on a regular diet. A Bowel and Bladder Assessment was performed, noting that Mrs. Tanner was incontinent of both bowel and bladder. She was not a candidate for bowel or bladder retraining due to her severe confusion and inability to follow directions. This was reviewed on a quarterly basis. A fall risk assessment was completed upon admission, noting her to be at a high risk for falls due to her intermittent confusion, and medications. This assessment was updated at least five times during her residence. Furthermore, a Pressure Ulcer Risk Assessment was completed, nothing that she was at a high risk for skin breakdown due to incontinence, fair nutritional intake and medications.
Based upon the initial assessments, as well as the required Minimum Data Set (MDS) and certain triggered Resident Assessment Protocols (RAPs), several plans of care were created. A â€œplan of careâ€ or â€œcare planâ€ is a tool utilized by a skilled nursing facility to identify and/or address resident problems with approaches to be taken to minimize such from occurring, along with time measurable goals. The care plans created for Mrs. Tanner upon admission and throughout the course of her residence included Fall/Physical Restraints, Increased Anxiety, sudden exhaustive collapse, inability to perform self-care, change in cognitive level, Skin Integrity, Nutritional Status, risk for poor adjustment to placement, Combative-Disruptive Behavior, Anxiety, Dementia, Infection-Antibiotic Therapy, Dementia/Alzheimerâ€™s, Psychoses, and Risk for Personal Injury-Restraints. Subsequent short term care plans were also created to address Mrs. Tannerâ€™s continued combative behavior and episodes of aggressiveness, including several incidents where she struck or attempted to strike another resident and/or a care provider.
Further, short term care plans were created after Mrs. Tanner incurred non-injury falls on March 6, 2005, March 9, 2005, April 18, 2005 and July 13, 2005, wherein she was assessed, monitored and each resolved without further incident. Finally, a short term care plan was created on September 2, 2005, when Mrs. Tanner again fell, noting that she had possible left hip and knee fracture.
Mrs. Tanner was initially cooperative and pleasant. She required assistance with all ADLâ€™s, including dressing, eating and personal hygiene and toileting. It was noted on March 2, 2005 that her appetite was poor. There are also several instances where she refused liquids. On March 3, 2005, Mrs. Tanner acted in a threatening manner toward an aide. She was continually noted in a confused state. On March 5, 2005, she was again noted to be aggressive and resistant to care. Her aggressive and combative behavior continued over the next few days, and on March 7, 2005, she hit two residents in separate incidents. Her physician and daughter were notified. She continued banging her door and shaking her fist at staff and residents, and was redirected multiple times.
On March 8, 2005, Betty Pao contacted the facility regarding her motherâ€™s behaviors and stated she â€œforgot to tell us prior to admission that 2 months prior to her transfer from Hawaii to her, she [Mrs. Tanner] started having an increase of aggressive, abnormal behaviors. They started trying her on different medication but did not find a balance before she was transferred here.â€ Mrs. Pao claimed that she was unaware of exactly what behaviors Mrs. Tanner was exhibiting prior to her admission at Colonial.
Mrs. Tannerâ€™s psychotherapeutic medication levels (including those she was admitted with) as well as signs and symptoms of side effects therefrom were continually monitored and assessed through her residence with pharmacy review and recommendation, psychiatric review and continual physician input. Informed consents were obtained and her medical staff attempted several interventions to redirect her from aggressive and combative behaviors.
The interdisciplinary team met and it was determined that a psychiatric evaluation would be initiated. She was evaluated by Dr. Posey on March 10, 2005, and she was subsequently prescribed Depakote. Mrs. Tannerâ€™s impulsive, combative and aggressive behaviors continued. Due this aggressive behavior, on or about March 14, 2005, she was assigned an aide 1:1 at all times during the AM and PM shifts (until 8:00 p.m.) She continued to have bouts of aggressive and combative behavior which is well documented in the facility chart.
On September 2, 2005, Mrs. Tanner was sitting in a chair in the hallway. She got up from the chair quickly and attempted to ambulate. She immediately lost her balance while holding her baby doll and fell to her left side. The fall was witnessed by an aide and the charge nurse, Darcie Chavez. An assessment was immediately conducted which revealed that her skin was intact. Mrs. Tanner complained of left hip and knee pain and her left leg was noted to be adducted and internally rotated. She was placed back to bed on hip precautions. Her family arrived shortly after the fall and were subsequently notified. Mrs. Tannerâ€™s physician was contacted and ordered stat x-rays; which were subsequently negative. Extra Strength Tylenol was ordered with good results.
Mrs. Tannerâ€™s was placed on every shift (â€œq shiftâ€) charting for 72 hours and her pain levels were monitored regularly. She continued to exhibit signs of confusion and was noted to be uncomfortable. In that her levels of pain were not diminishing, on n September 6, 2005, a bone scan was requested. Additionally, her physician, Dr. Nesbitt, testified that he was in the facility on September 6, 2005, informed of Mrs. Tannerâ€™s pain and examined her, ordering a bone scan. A subsequent fax order was received from Dr. Nesbitt, Sutter Auburn Faith Hospital was contacted on September 7, 2005 and the scan was scheduled September 9, 2005. Mrs. Pao was notified.
The bone scan at Sutter Auburn Faith Hospital on September 9, 2005 revealed a left hip fracture. At that time, it was recommended by the physician at Sutter Auburn Faith that because of the patientâ€™s underlying condition that the best course was to return her to the nursing home with attention to pain control as surgical intervention in this patient is not in the patientâ€™s best interest, and the daughter concurred with this assessment at that time. Mrs. Tanner was then transferred back to Colonial for said care. Mrs. Pao ultimately requested that Mrs. Tanner be transferred to Kaiser Permanente for evaluation. Following Mrs. Pao obtaining approval from Kaiser Hawaii for Mrs. Tannerâ€™s admission, she was transported to Kaiser Hospital Roseville, via ambulance, at 7:45 p.m. on September 10, 2005. Kaiser determined that Mrs. Tanner was a candidate for hip surgery and performed said surgery on September 11, 2005.
The two issues in the case were the falls and skin wound:
Mrs. Tanner incurred falls while a resident at Colonial. Upon admission, a fall risk assessment was performed on March 2, 2005, indicating Mrs. Tanner was a high risk for falls. An initial care plan was created on March 2, 2005, and was reviewed and/or updated on March 6, 2005, March 9, 2005, March 15, 2005, April 18, 2005, June 9, 2005, July 13, 2005, September 2, 2005 and again on September 5, 2005 to address Mrs. Tannerâ€™s fall risk and interventions.
The Interdisciplinary Team met and reviewed Mrs. Tannerâ€™s history of falling, and fall committee reviews were done on March 14, 2005, July 20, 2005 and September 8, 2005. On April 19, 2005, the physician ordered a Geri chair with table top, after obtaining informed consent, to be used when Mrs. Tanner was hostile, impulsive or combative. Short term care plans were created after Mrs. Tanner incurred non-injury falls on March 6, 2005, March 9, 2005, April 18, 2005 and July 13, 2005, wherein she was assessed, monitored and each resolved without further incident.
On September 2, 2005, Mrs. Tanner incurred a witnessed fall – the only fall which resulted in any injury. This fall occurred at approximately 12:00 p.m., when Mrs. Tanner attempted to stand up out of her chair in the hallway at approximately 12:00 p.m., while holding a baby doll. A complete assessment was performed, and everything appeared within normal limits, including Mrs. Tannerâ€™s skin, which was noted to be â€œintactâ€. She was noted with left hip and knee pain, however, and such were noted to be adducted and internally rotated. The physician was notified and ordered a stat x-ray. Such was performed, which was negative. Orders were also obtained from to provide Extra Strength Tylenol for pain, and she was noted on September 4, 2005, to be alert and responsive and in less pain. She was not moaning and slept well all night. There were facial expressions of fear, however, later on September 4, 2005, when Mrs. Tanner was in her Geri chair, and she refused to ambulate.
Due to the prior falls, precautions had been instituted, and indeed a physical restraint was in place in order to restrain the patient from engaging in combative or aggressive behavior. Further, Mrs. Tanner was receiving medication to control her behavior, including Trazodone, Seroquel and Depakote. She was continually monitored following the fall on September 2, 2005.
Following her fall on September 2, 2005, and the negative x-ray, Mrs. Tanner was continually monitored and assessed. Her pain levels were assessed and she was noted to be receiving good pain relief. However, on September 6, 2005, staff noted that she continued to be in pain and notified the physician of such. The physician stated that he saw the patient, did an assessment and ordered a bone scan. A fax order was obtained on September 6, 2005 and on September 7, 2005, the scan was scheduled to occur on September 9, 2005. The facility continued to monitor Mrs. Tanner, provide medications and provide 1:1 care until she was ultimately transferred from the facility on September 10, 2005 at 7:45 p.m.
The facility appreciably noted plaintiffâ€™s risk to develop pressure sores and in fact, the evidence showed that at no time while in the care of Colonial did Mrs. Tanner incur skin breakdown to her coccyx as alleged herein. The only contrary evidence was from Plaintiffâ€™s expert, Dr. Locatell who opined based on the condition of the wound three weeks after discharge from Colonial it â€œmust have existed at Colonialâ€ even though she admitted the wound first noted at Kaiser, 8 hours after her ER arrival, could have occurred within a 2 hours.
A Pressure Ulcer Assessment was performed on March 2, 2005 noting Mrs. Tannerâ€™ skin was dry and fragile and such was updated on June 9, 2005. Further, based upon the admission MDS, an RAP was triggered noting risk for pressure ulcers on March 14, 2005. Skin integrity care plans, were prepared on March 2, 2005, June 9, 2005, and then again on September 5, 2005. Therefore, there were substantial efforts to minimize the risk of alteration in skin integrity based upon the assessments and care planning.
Tanner was admitted to Colonial weighing 118 pounds. Her ideal body weight was 108-132. She was noted to need assistance with meals in September 2005, but before that, significant interventions and screening was done in order to ensure proper nutrition. For example, a prescreening dietary interview was performed on March 4, 2005, as well as a nutritional risk review done on that same date which evaluated the patientâ€™s calorie, protein and hydration needs.
A dietary quarterly progress note was prepared on June 8, 2005, memorializing the patientâ€™s weight at 123 pounds. Moreover, a nutritional progress note was authored on July 17, 2005, and again a dietary quarterly note was authored on September 6, 2005. Therefore, efforts were made to ensure proper nutrition and, specifically, to maximize patient protein stores in order to minimize the risk of violation of the patientâ€™s skin integrity.
Mrs. Tanner was incontinent of both bowel and bladder, and the facility kept her skin dry in order to prevent maceration of the skin when it becomes wet from urine. Efforts typically used to reduce pressure sores include, therefore, keeping the skin clean and well-hydrated, avoiding friction and scrubbing and relieving pressure over boney prominences were all met or exceeded herein.
There was simply nothing pointing to any pressure wound developing at Colonial. Following her fall on September 2, 2005, Mrs. Tanner was assessed by nursing staff and her skin was noted to be â€œintactâ€. Her skin was subsequently noted by a nursing aide to be in tact on September 3, 2005. On September 9, 2005, Mrs. Tanner was transferred, via ambulance gurney, to Sutter Auburn Faith Hospital for a scheduled bone scan. Upon arrival, at approximately 1645, the attending ER physician, John R. Bauer, MD noted, â€œThis is an elderly, dry-appearing, unresponsive patient. The patientâ€™s skin otherwise without breakdownâ€. The bone scan on September 9, 2005 was a 3-phase scan wherein Mrs. Tanner would be required to lie still, in a single position, for a long period of time. After a period of time, at 11:00 p.m. she was transferred back to Colonial. On September 10, 2005, Mrs. Tanner was transferred to Kaiser Permanente, Roseville via ambulance at approximately 7:45 p.m. The service, American medical Response noted that her skin was â€œwarm, dry, pinkâ€. There is absolutely no indication of any skin issues.
Mrs. Tanner left Colonial at 7:45 p.m. and was in transit from Colonial to Kaiser for approximately 40 minutes when she was admitted to the emergency department at approximately 8:32 p.m. Mrs. Tanner was admitted to medical/surgical floor from the ER at Kaiser at 1:00 a.m. Mrs. Pao daughter testified that she never witnessed Mrs. Tanner being turned or repositioned. A Medical Screening Examination at 8:22 p.m. revealed skin warn/dry with no indication of injury/laceration. The ER physician noted that the skin was dry looking but otherwise intact.
The first indication anywhere of a skin issue of any kind is at Kaiser hospital, on September 11, 2005, at 1:20 a.m., when she was admitted from the ER to the floor. The wound is simply a box checked â€œyesâ€ under â€œpressure ulcerâ€ and states â€œcoccyx with Stage II decubâ€. There was one photograph taken of same which was untimed.
The wound was never described by Kaiser until September 14, 2005 at 3:15 p.m. in a document called â€œWound Trending Recordâ€. This states that there is a coccyx wound which is 1.7cm x 1.5cm x 1mm (depth), Stage II, partial thickness, no undermining, no exudates, no odor. The surrounding skin was clear/intact and there was no notable pain. A notation is set forth that a message was left for wound nurse for evaluation. The wound was noted as being treated with Hydrocolloid.
On September 15, 2005, at 8:45 a.m., the wound measured 1.5cm x 2 cm x 0.1cm (depth), Stage II, no undermining, with serosanguineous exudate. The wound was now noted with discoloration, but without notable pain. The treatment was again hydrocolloid. An additional photo was taken of this wound at Kaiser on 9/15/05 at approximately 8:45 a.m.
Mrs. Tanner was subsequently transferred to Eskaton Manor Manzanita on September 15, 2005. The discharge summary notes that Mrs. Tanner had a Stage II to her coccyx measuring 1.5cm x 2.0cm x 0.1 cm (depth). It was noted as being treated with Hydrocolloid. Post surgery, Mrs. Tanner was transferred to Eskaton Manzanita.
Mrs. Tanner was noted as arriving at Eskaton at 11:00 a.m. on September 15, 2005. At 1:30 p.m., she was noted to have an open area to coccyx with yellow slough, with dressing intact and no signs/symptoms of infection. She was also noted with bilateral heels that were mushy and elevated with pillows. These were not noted anywhere in the Kaiser records.
On September 17, 2005, the dressing to coccyx was changed per MD orders, and Mrs. Tanner was turned and repositioned frequently. On September 20, 2005, the wound was noted to be 3.5cm x 3.0cm x 0 (depth), Stage III.
On September 21, 2005, it was noted that the open area to the coccyx with thick yellow slough and edges with redness and maceration. There was no odor and no signs/symptoms of infection. The wound nurse from Kaiser evaluated the wound as undetermined stage 3.0cm x 2.0cm with 100% thick adhered yellow slough and peri wound that is slightly red. New treatment orders obtained from the physician, Dr. Berry.
On September 26, 2005, the wound was noted to be cleansed, and treated.
Twelve days after her admission to Eskaton, on September 27, 2005, at 3:00 p.m., the coccyx wound was noted to have increased in size to 4.0cm x 4.0cm x 0 (depth), Stage III, with yellow slough at the bases, bit black, moist tissue to the edges, maceration and discolor around. There was a small amount of yellow drainage with light foul odor. The wound nurse from Kaiser was notified to come in the morning to re-evaluate the wound. The daughter, Betty Pao, was noted at the bedside and informed.
On September 29, 2005, the Kaiser wound nurse evaluated the coccyx wound at 5.0cm x 3.0 cm with 100% thick brown/black eschar, attached slough.
On September 29, 2005, at 7:00 a.m., there is a late entry for September 28 which states open area to coccyx remained with thick, yellow sought, black/brown, moist tissue at edges with maceration and redness. The physician was in-house and notified in person. The wound nurse was also present to evaluate and ordered to continue ongoing treatment. Antibiotic was started for wound infection.
On October 4, 2005, the wound was noted at 6.0cm x. 6.0cm x 0 (depth), Stage IV.
On October 5, 2005, the wound nurse from Kaiser noted the coccyx wound to be at approximately 6.0cm x 6.0 cm filled with 100% brown/black eschar and appeared mushy and deep. From this date forward, Mrs. Tanner was noted to be on antibiotics for wound infection and dressing change until the date of her death on October 7, 2005.
On October 7, 2005, Mrs. Tanner died, with her daughter present at her bedside. The immediate causes of death were noted on the death as sepsis and infected sacral ulcer.
Plaintiff focuses on the facility having staffing many days below 3.2 ppd. The court allowed this evidence despite the 1:1 care rendered to Tanner on most days. Comments from the jury indicate they discussed prior citation history at the facility showing they were â€œbadâ€. There was no such evidence in the trial, but the information was in the news article released the morning of deliberations. The jury also admits they agreed on the $28M punitive amount as â€œinsuranceâ€ will pay for itâ€¦.
Michael J. LeVangie
PROUT â€¢ LEVANGIE
2021 N Street
Sacramento, CA 95811
Firm/Company: Prout LeVangie
Document Date: February 21, 2020
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