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.

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

 

fudgemcarthur

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