Document Category:
State: Tennessee
Subject Matter: Tennessee Supreme Court Opinion
Document Title:

Good afternoon,

You may remember our report
from earlier this year in the Wilson v. Americare Systems case from the TN
Court of Appeals.  The COA reversed the decision of the trial court
(awarding $5M in punitive damages to Plaintiff) and found that there was no
material evidence to support the claim of liability against the management
company re: staffing deficiencies.  Unfortunately, the Supreme Court
issued its opinion yesterday, reversing the COA and
remanding the case to the COA for review of the punitive damages award.

Like the COA opinion, the
Supreme Court appeal concerns only the jury verdict and judgment finding
the management company (Americare) directly liable for failure to provide
adequate staff at the assisted living facility.

Whereas the COA focused on
causation and found no material evidence to support a conclusion that any
staffing deficiency proximately caused the decedent’s death, the Supreme
Court simply disagreed, stating that the Plaintiff presented material
evidence from which the jury could reasonably conclude that Americare
provided insufficient staffing to meet the needs of the residents at
Celebration Way, and that Americare was aware of the understaffing
problem.  Significant in the proof was that the facility administrator
(and licensed nurse) testified that she made Americare aware of the
understaffing problem, through Americare’s regional operations

Further, the Supreme Court
found that there was material proof from the Plaintiff that the
understaffing led to lapses and deviations from the standard of care. 
The Supreme Court quoted its opinion in the French v. Stratford House
nursing hone opinion (Tenn. 2011) in reasoning that it is within the
province of the jury to infer that if there is too much work required of
too few employees, either the work will not get done or the quality of work
will be diminished.

Specifically, Ms. Farrar
received significantly fewer doses of Miralax for her constipation than was
prescribed by her doctor.  She was required to have one dose every
morning but she received NONE in March 2004 and only six doses in
April.  Evidence suggested that she actually received far fewer doses
than were documented in her chart.  Finally, the Court found that as a
result of Ms. Farrar’s constipation and fecal impaction, she required
multiple enemas.  The enemas, however, were not given as ordered
either.  She was to receive 3-4 enemas a day but only received two
enemas total.  Plaintiff’s expert testified that the likely cause of
Ms. Farrar’s death was a perforated colon due to the final

As the lawsuits against the
management companies customarily include direct liability actions for
budgetary decisions including staffing decisions, this opinion reversed the
COA decision and is now in keeping with the Barkes v. River Park Hospital
decision which we reported back in 2010 in which the COA determined that a
hospital was 100% liability for the death of a resident for failing to
comply with its own policies and procedures.

Corporate liability claims
are one of the central claims advanced by Plaintiff’s attorneys in the AL
case (and the SNF case). The AL regulations serve only as a minimum for
establishing standards and as this case demonstrates, the standard of care
will be established by expert witness, not the regulations.  This case
highlights several of the areas we reviewed at t eh AHLA and that the
industry has been conversing about together regarding the need to evaluate
staffing levels in relationship to acuity and develop the risk management
programs for staff education and training. The need to evaluate corporate
structures and management agreements to determine the levels of
decision-making and control of each entity has never been more important.
With the Plaintiff’s focus on AL, we’ll be encouraging more dialogue about
best practices, standards and risk prevention and reduction strategies.

We will continue to keep
you apprised of case law and legislative developments in this regard and
their importance and impact for LTC/ALF providers.  Please let us know
if you have any questions or feedback.  Enjoy the day.


Rebecca Adelman|Attorney

545 South Main Street; Suite 111

Memphis, TN 38103

901 529 9313 ph

901 529 8772 fx


Document Author: Rebecca Adelman
Firm/Company: Hagwood Adelman Tipton
Document Date: February 1, 2013
Search Tags: TN
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