CA: DEFENSE VERDICT IN NURSING HOME ABUSE AND WRONGFUL DEATH TRIAL SUCCESSFUL APPEAL OF “PATIENT’S RIGHTS” AWARD

A jury in Ventura, California, deliberated for
a day and a half before returning a mixed verdict.  The jury returned a
defense verdict on the wrongful death claim, and a plaintiffs’ verdict on a
claim under Health and Safety Code section 1430(b), for Violation of Resident
Rights.  The verdict followed a three-week trial which focused on
allegations that personnel from defendant’s skilled nursing facility had
mismanaged a feeding tube entry site, or "stoma," by failing to
recognize the signs and symptoms of a deep-seated, underlying infection in the
resident’s abdominal wall.  The patient ultimately died from aspiration
pneumonia.

The plaintiffs, Ana Lemaire and Sonia Delvecchio, were represented by Greg
Johnson of the Law Offices of Gregory Johnson, in Oxnard, California, and by
Jody Moore of the Law Offices of Jody Moore, of Thousand Oaks, California.
 Ana Lemaire and Sonia Delvecchio were the adult daughters of the
decedent, 87 year old Laura Clausen.
 
The defendant was represented by Thomas E. Beach from Beach | Cowdrey | Owen,
LLP in Oxnard, California.
 
Plaintiffs’ decedent, 87 year-old Laura Clausen, had been admitted to Shoreline
Care Center, on hospice care, following a catastrophic stroke which requiring a
craniotomy.  The stroke left Ms. Clausen significantly debilitated.
 Following the stroke, Ms. Clausen required total assistance with all activities
of daily living, was bed bound, and suffered from a seizure disorder.  She
lost the ability to speak and eat, and nutrition had to be provided through a
G-tube inserted into her abdomen.  Ms. Clausen’s existing medical problems
were so severe that, prior to her arrival at Shoreline, she was considered to
be "end stage" due to advanced cerebrovascular disease.  Indeed,
her own attending physician at Shoreline certified Ms. Clausen for hospice
care, meaning that, in his professional opinion, she had six months or less to
live.
 
Ms. Clausen was admitted to Shoreline with a G-tube already in place for
feedings.  There were no issues with the G-tube until June 20, 2010.
 At around that time, the G-tube began to clog intermittently, such that
feeding formula could not flow freely through the tube.  Facility
personnel notified the resident’s physician of the condition, and on June 21,
2010, he sent her to the emergency department for an evaluation of the issue.
 The emergency department physician found nothing wrong with the tube.
 
Upon her return to the facility, nurses continued to note difficulties with the
flow of feeding through the tube.    They again notified the
resident’s physician.   Once again, on June 25, 2010, he sent her to the
emergency department for an evaluation of the issue.   Again a different
emergency room physician found nothing wrong with the tube, an advised facility
personnel that they could continue to use the tube, but could flush it out with
soda water if it continued to be sluggish.  
 
Over the next few weeks, the feeding tube continued to be sluggish
intermittently.   Ms. Clausen’s physician was notified, and he attended to
the tube issues.   He prescribed antibiotics, and he testified that he
felt that the redness around the G-tube site was improving.   As for the
functioning of the tube, he testified that the tube was working sufficiently,
well, and that he did not want to put Ms. Clausen, an elderly hospice patient,
through the discomfort associated with transport to the hospital, general
anesthesia, and a surgical procedure to replace the tube.

Plaintiffs’ experts in geriatrics, nursing, and gastroenterology testified that
Ms. Clausen had a rare condition known as "buried bumper syndrome,"
in which the G-tube moves out of place and imbeds itself into the abdominal
wall.  Plaintiffs maintained that nursing personnel should have picked up
on the symptoms of buried bumper syndrome, and that their failure to do so
ultimately led to Ms. Clausen’s death.

Defendants argued that Ms. Clausen, who was a hospice patient, was receiving an
extraordinary amount of care, since she was being seen by not only Shoreline
nurses, but also by hospice nurses.  In addition, she was being seen by
her own physician at Shoreline, and two different emergency room physicians had
not identified any meaningful problems with either Ms. Clausen’s G-tube or with
her abdominal area.  Interestingly, these two emergency room physicians
testified that they had never even heard of buried bumper syndrome.  The
gastroenterologist who actually placed the tube in Ms. Clausen testified that
after having placed thousands of G-tubes over his career, he had never seen a
single case of buried bumper syndrome.
 
The jury returned a defense verdict finding that the nurses and staff at
Shoreline Care Center did not cause the death of Laura Clausen. The jury did,
however, find that various aspects of the medical chart relating to Ms. Clausen
was incomplete or inaccurate, such that plaintiffs should be awarded $270,000
under Health and Safety Code section 1430(b).
 
The defendants appealed the judgment on the Health and Safety Code section
1430(b) claim, arguing that the statute allows no more than $500.00 in damages.
 The Court of Appeal agreed and reversed the judgment, finding that the
plaintiffs’ total award could not exceed the $500.00 statutory maximum.
 The appellate decision was not certified for publication.
 
The case was tried before the Honorable Charles McGrath.
 
Ventura County Superior Court Case No. 56-2010-00383376
 
California Court of Appeal Case No. B248672

 

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