Document Category:
State: Iowa
Subject Matter: Defense Verdict in Iowa Long Term Care Jury Trial--Emeritus d/b/aSilver Pines
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Fudge & McArthur,
P.A.’s Donna Fudge and Tara Zimmerman are pleased to announce that they
successfully defended Emeritus Corporation in a December 2012 Jury Trial in
Iowa.

Defense
Verdict in Iowa Long Term Care Jury Trial

Doug Lane, as
representative of the Estate of Robert Lane, brought suit against Emeritus,
d/b/a Silver Pines, in relation to Robert Lane’s residency at the Silver Pines
residential care facility from February 2004 through April 9, 2006. The
Petition filed by Plaintiff alleged three counts against Silver Pines: (1)
Negligence, Gross Negligence and Recklessness, which included a claim for
punitive damages and loss of consortium; (2) Breach of Contract; and (3)
Dependent Adult Abuse. Throughout the course of the five day trial, Plaintiff
dropped his claim for Breach of Contract and Dependent Adult Abuse, leaving
only the negligence claims with punitive damages and loss of consortium.

The basis of Plaintiff’s
claims were narrowed to the final 3 ½ months that Mr. Lane was a resident,
December 24, 2005 through April 9, 2006. Plaintiff alleged that his father lost
approximately 50 lbs. during that very short time frame.  Plaintiff
alleged that Silver Pines caregivers failed to report this weight loss to the
treating physician, Dr. Trautman, as well as to Robert Lane’s son, Doug
Lane.  There was in fact no entry in either the Silver Pines chart or Dr.
Trautman’s records evidencing that Silver Pines had notified Dr. Trautman of
any weight loss.  Plaintiff claimed that his father became malnourished,
had black, tarry stools indicating significant internal bleeding and later
contracted community acquired pneumonia as a result of his malnourishment and
weakened condition, which led to his death. Plaintiff also claimed that Robert
Lane required a higher level of care than Silver Pines was permitted by Iowa’s
Residential Care Facility law to provide. 

In addition, the Iowa
State Surveyors investigated the son’s allegations and issued a state survey
report that cited the facility for failing to document in the resident’s chart
the weight loss interventions that were implemented and for allowing Mr. Lane
to remain in the residential care facility despite having leg ulcers that the
state claimed disqualified him for continued residency in an Iowa residential
care facility.

Lastly, the Plaintiff
argued that the company put “profits over people” and needed to be punished for
its alleged lack of response to Mr. Lane’s excessive weight loss and physical
decline.

Defense Experts – Dr. Robert Bender (Des Moines, Iowa) and Pat
Giorgio (Cedar Rapids, Iowa):

(1) Dr. Bender:     The defense’s focus in this
case was Robert Lane’s underlying co-morbidities which contributed to his
weight loss, including Lasix for edema, lymphoma of the stomach and bleeding
stomach ulcers. Defendant retained Dr. Bender as its medical expert. Dr. Bender
was an excellent witness, and clearly pointed out for the jury how Robert
Lane’s underlying conditions accounted for the weight loss. He also testified
to the numerous notifications given by the caregivers at Silver Pines to Dr.
Trautman regarding significant changes in Mr. Lane’s condition.  He
testified that the caregivers also followed Dr. Trautman’s two weight orders;
one for monthly weights and one for weights every other day for one week. 
In the final month of Mr. Lane’s residency, the caregivers reported a 6 lb.
weight loss over a 6 day period of time to Dr. Trautman.

Dr. Trautman issued no new
order and instead sent a response back to the caregivers saying, “Ok.” 
Mr. Lane was on Lasix at that specific time for bilateral 2+ pitting leg edema,
and thus weight loss was the anticipated goal. Dr. Bender identified areas in
Dr. Trautman’s records wherein Mr. Lane refused testing and treatment for any
of his underlying stomach conditions. Finally, Dr. Bender testified to the
interventions taken by Silver Pines to address Mr. Lane’s weight loss,
including adding a sandwich and bedtime snack and moving Mr. Lane’s room closer
to the dining room.  Dr. Bender opined that these interventions were
appropriate and at no time did Mr. Lane require a transfer to a higher level of
care facility.

(2) Pat Giorgio:     The defense also retained
Pat Giorgio, the owner of several Resident Care Facilities in Iowa. Ms. Giorgio
testified that the caregivers at Silver Pines followed the regulations
applicable to Residential Care Facilities in Chapter 57 of the Iowa Code, as well
as Silver Pines’ internal policies and procedures.  Ms. Giorgio also
opined that the caregivers at Silver Pines met the standard of care regarding
weight loss interventions (even though not all such interventions were reduced
to a written entry in the chart) and notifications to Mr. Lane’s
physicians.  Finally, Ms. Giorgio testified that Mr. Lane remained
appropriate for residency at a residential care facility throughout his entire
stay at Silver Pines, and did not require a higher level of care.  Specifically,
Ms. Giorgio pointed out that Iowa’s Residential Care Facility Chapter 57
regulations expressly allow for dressings and decubitus ulcers, thus proving
that the State Surveyor was simply mistaken in her conclusion that Mr. Lane’s
leg ulcers disqualified him from continued residency.

Trial Team:  Donna Fudge and Tara Zimmerman of Fudge &
McArthur, P.A. were lead trial counsel.  Bethany Wharrie, Esq. and Amy
Bozarth of Fudge & McArthur, P.A. and Ken Watkins, Esq. of Davis Brown Law
Firm assisted in the trial.

Verdict:  Following the five (5) day jury trial, after a
very short deliberation, the jury returned a unanimous verdict for the
defense.  Post Verdict discussions with the Jurors (which is allowed under
Iowa law), revealed that Jurors believed Emeritus Caregivers did a good job in
their care and treatment of Mr. Lane.

Donna J.
Fudge, Esquire*

Fudge &
McArthur, P.A.

650 16th Street North

St. Petersburg, FL 33705

(727) 490-3080 (direct)

(727) 490-3101 (facsimile)

*Licensed in
FL, WI, MN, PA & NY

 


Document Author: Donna Fudge
Firm/Company: Fudge McArthur
Document Date: January 2013
Search Tags: IA
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