Defense Verdict in Nursing Home Case in NC

Attorneys Kirsten Ullman and Bruce Peisner obtained a
defense verdict on May 17, 2013 following a two day arbitration hearing in the
matter of G.P. v. Deep Creek RNC, LLC, d/b/a Port Charlotte Rehabilitation
G.P. was 62 years old when he suffered a second stroke in February
2011 following a history significant for alcohol and tobacco use and
non-compliance with medications. The second stroke did not cause cognitive
difficulties for G.P., but did leave him with left sided weakness and
contracture of the left upper extremity. Following a lengthy hospitalization,
G.P. was admitted to Port Charlotte Rehabilitation Center in April 2011.

G.P. made great strides with physical and occupational
therapies. He initially required total assistance with transferring from bed to
wheelchair and wheelchair to bed. He progressed to moderate and then light
assistance. By June 2011, G.P. required contact guard assistance for transfers
and by late April 2011 he progressed to stand by assistance only for transfers
from bed to wheelchair. He remained a contact guard assist for transfers from
wheelchair to bed due to the fact that G.P. is 6’7” inches tall and weighs
about 200 lbs.

The primary issue in the case revolved around two completely
disparate accounts of a fall event. G.P., the resident, who is competent,
alert, and oriented testified to one version, while the C.N.A. testified to a
different version. At the time of the arbitration, G.P. continued to be a
resident at the facility.


On August 22, 2011, at approximately 7:45 p.m., G.P.
used his call bell to request assistance from a certified nursing assistant.
The aide testified that she entered the room to find G.P. sitting on the side
of his bed with his feet on the ground and his laptop sitting on his legs. She
testified that G.P. requested that she bring his wheelchair from the other side
of the bed to where he was sitting. She did so and locked the wheels. G.P.
immediately requested that the aide take the laptop and place it on a dresser
several steps away from the bed. The aide testified that as she was placing the
laptop on the dresser, she heard a thump and turned to find G.P. lying on the
floor next to the wheelchair. She testified that he immediately told her that
it was not her fault and that he had attempted to transfer himself without

The aide testified that she called for the floor nurse
who came into the room to evaluate G.P. The floor nurse testified that G.P.
told her that he had attempted to transfer himself and fell to the floor. This
information was also communicated to the facility risk manager who testified
that G.P. told her that he had attempted to transfer himself.


G.P. testified that he was completely unable to
balance on the edge of bed and that the factual rendition as given by the
C.N.A. was impossible. He testified that the nursing aide entered the room and
assisted him from the bed to his wheelchair. He testified that the aide
assisted him to the bathroom and then back into the wheelchair and back to the
side of the bed. He testified that the aide was assisting him from the
wheelchair to the bed when she let go and allowed him to fall to the floor.
Interestingly, G.P. initially refused to go to the emergency room. A mobile
x-ray was negative for any dislocation or fracture. G.P. complained of pain in
the left hip off and on for the next three days, but continued to refuse
requests that he go to the ER for evaluation. It was only on the fourth day
after the fall that G.P. went to the hospital for a CT scan that showed a
mildly displaced femur fracture.

Plaintiff’s standard of care expert testified that the
nursing aide deviated from the standard of care by bringing G.P. his wheelchair
as requested and by turning her back on G.P. to place the laptop on the
dresser. She testified that the aide deviated from the standard of care by
letting go of G.P. and not using a gait belt if the incident occurred as
described by G.P. Defense experts testified that there was no deviation from
the standard of care regardless of which version the arbitrator believed. G.P.
had no history of non-compliant behavior by attempting to transfer himself.
There was no reason for the aide to have reasonably considered that G.P. might
attempt to self transfer on this particular occasion.

The arbitrator returned a
verdict for the defense.


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