Subject Matter: Opinion
Good evening and I hope the week is going well. Today the Tennessee Court of Appeals delivered its opinion in Vice v. Elmcroft et al (attached) affirming the jury’s award of $250K to the daughter of an ALF resident who suffered several falls and a broken clavicle at the facility. The McHugh Fuller Group tried the case.
This case centers around whether or not the assisted living facility known as Elmcroft of Hendersonville, together with its related entities Senior Care, Inc. and AL Hendersonville Operations, LLC (all entities will be referred to as â€œElmcroftâ€), and its administrator, Lisa Harrison, were negligent in their care of Julia C. Bynum while she was a resident at Elmcroft. The case was tried before a jury, which found Elmcroft and
Ms. Harrison negligent and awarded damages to Ms. Bynumâ€™s administratrix, Cathy Vice, in the amount of $250,000. Elmcroft appealed the trial courtâ€™s judgment accepting the jury verdict.
The resident was 87 years old and suffering from dementia. Elmcroft
assured the daughter that it could care for her mother and admitted her after the daughter informed it of her concern about her motherâ€™s risk for falls. Three weeks following her admission the mother fell, and then fell three more times before the daughter moved her out of Elmcroft. The final fall resulted in a broken clavicle, which caused the mother pain
and decreased mobility for the rest of her life. The daughter
sued Elmcroft and its administrator for negligence and negligent
admission and retention of her mother.
Relying on the recent French case decided by our Supreme Court, the Court of Appeals determined that the claim for wrongful admission and retention sounded in ordinary negligence and not medical malpractice. The Court further found that because the administrator testified that she was responsible for the admission assessments and staffing decisions, she could be found individually liable as she did not rely on a physicianâ€™s assessment in determining eligibility for placement as in a nursing home.
The Court of Appeals also found that the jury award was not excessive despite the medical specials amounting to approximately $3,600. There was evidence of pain and suffering due to the fracture for the 500 days after the incident and leading up to her death.
There are factual details related to the lack of documentations and failure to follow the fall risk interventions and incident reporting protocols all of which, if compliant argued Plaintiff, would have made know the history of falls to the staff and prevented further falls.
We have seen in many jurisdictions that the strength of the ALF cases are claims for negligent admission and retention and thus ALFâ€™s should continue to evaluate the admission protocols and to enhance efforts to comply with the applicable state regulations related to continued evaluations and changes that require transfer.
Let us know if you have any questions and have a great day tomorrow. For those of you attending the THCA this week, I look forward to seeing you. ~Rebecca
(b) â€œHealth care liability actionâ€ means any civil action, including
claims against the state or a political subdivision thereof, alleging that a
health care provider or providers have caused an injury related to the
provision of, or failure to provide, health care services to a person,
regardless of the theory of liability on which the action is based.
(c) Health care services to persons includes care by health care
providers, which includes care by physicians, nurses, licensed practical
nurses, pharmacists, pharmacy interns or pharmacy technicians under
the supervision of a pharmacist, orderlies, certified nursing assistants,
advance practice nurses, physician assistants, nursing technicians and
other agents, employees and representatives of the provider, and also
includes staffing, custodial or basic care, positioning, hydration and
similar patient services.
(d) Any such civil action or claim is subject to the provisions of
this part regardless of any other claims, causes of action, or theories of
liability alleged in the complaint, provided that no provision of this part
shall apply to claims against the state of
such provision is inconsistent with or conflicts with the provisions of the
Tennessee Claims Commission Act, codified in title 9, chapter 8, part 3.
Firm/Company: Adelman Law Firm PLLC
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