Ohio Firm Successfully Defends LTC Facility

Paul W. McCartney and Arthur
E. Phelps, Partners with Rendigs, Fry, Kiely & Dennis, LLP in Cincinnati,
Ohio, recently successfully defended a long term care facility in the
Cincinnati area.

The children of a 78-year-old
widowed female brought the suit after their mother’s death. The woman had
suffered an anoxic brain injury following a myocardial infarction approximately
three months before she entered the facility. She was diagnosed with anoxic
encephalopathy. She was intubated and a trach placed within a couple of weeks
of her MI. A PEG tube was also placed as was a Foley catheter. She developed
aspiration pneumonia and left lung collapse. The pneumonia on the left side of
her lungs never cleared.

She was discharged to an LTAC
for weaning from a ventilator, but it was unsuccessful. She did not improve at
the LTAC and was diagnosed as being in a persistent vegetative state. She was
unresponsive, although she would open her eyes and groan or grimace with
treatment. However, she did not follow commands and did not track with her
eyes. In addition, she had recurrent UTIs. On several occasions, decedent’s
physicians discussed with the family that her prognosis was poor and the
possibility of utilizing hospice services, but the family continued to hold out
hope of recovery and declined.

Other than a brief hospital admission due to persistent
pneumonia, the woman was a resident of the facility for approximately 3.5 months. She entered the
long term care facility with multiple areas of skin breakdown and contractures of her lower extremities. Her risk for
skin breakdown was identified and treatment was initiated. In addition, an
outside wound care nurse was consulted. Toward the end of her residency, she
developed multiple new areas of skin breakdown and her blood sugars began to
rise. When she developed increased respiratory difficulties, she was
transferred to a hospital.

At the hospital, the woman
was diagnosed with urosepsis, pneumonia, and dehydration. In addition, when
trach care was provided about 12 hours after admission to the hospital, 40 to
50 maggots were found in the area of the trach site. The hospital contacted the
Ohio Department of Health to investigate possible abuse and neglect. After
several days, the woman was transferred to an LTAC because the family insisted
they wanted aggressive measures taken to see if she would recover. However, she
did not improve, and chest X-rays showed continued pneumonia. After about six
weeks, the family finally agreed to hospice care. While she was not removed
from the ventilator, only comfort care was provided, and the woman passed away
five days after entering hospice. The death certificate indicated the cause of
death was sepsis due to pneumonia of several weeks duration.

The plaintiffs’ theory was
that when a fly landed on the woman to lay its eggs,
it had bacteria on it that entered the trach and led to the pneumonia and, ultimately, the woman’s death seven weeks
later. The plaintiffs alleged the facility had a “fly problem” that it ignored
for financial reasons. The plaintiffs also alleged that the facility was
short-staffed and short on supplies because the owner put “profits over
people.” It was claimed that this led to a failure to provide trach care,
failure to turn and reposition the woman to provide proper skin care, failure
to provide Foley catheter care, failure to provide therapy to prevent the
development of contractures, failure to keep the woman hydrated, and failure to
properly monitor the woman’s blood sugars.

The plaintiffs did not depose
any of the direct care providers. The only depositions taken were of the former
administrator, the regional vice president for clinical operations, and the
company’s president. A private investigator was used to locate former employees
who would testify against the facility. The plaintiffs called eight former
employees, six of whom had been fired from the facility, and stated that
inadequate staffing led to inadequate care and treatment. In addition, they
noted that there were numerous “holes” in the chart and evidence of
after-the-fact charting. The plaintiffs also claimed that staff were instructed
by the director of nursing (and others) to go back and fill in the
aforementioned holes, and that some of the charting was manufactured. Both
compensatory and punitive damages were sought.

The primary defense theme
focused on woman’s anoxic injury that had damaged every organ and tissue in her
body—not just her brain—and led to her being in a persistent vegetative state.
Because of her anoxic injury, skin breakdown, pneumonia, UTIs, and
deterioration throughout her body were the expected course. Moreover, because
she was unconscious, she was completely unaware of what was happening to her
and had no conscious pain and suffering. Finally, her death was completed
unrelated to any care provided at the facility but was instead due to the
natural progression of her severe anoxic injury.

While there were issues with
the woman’s chart, overall the chart reflected that her medical issues (such as
the potential for skin breakdown) were identified and care-planned, and that
treatment was initiated and completed the vast majority of the time. If the
facility was not providing care as alleged, her condition would have
deteriorated more rapidly than it did. For instance, she did not have a UTI
until the end, suggesting that Foley catheter care was being given. Her
pressure ulcers largely remained stable until the very end, when they
progressed and new areas of skin breakdown developed—most of which were not
pressure ulcers. There was never evidence of cellulitis in the area of the
trach, which would have occurred if it was not being routinely cleaned and care
was not being provided.

The jury deliberated 12.5
hours before returning a unanimous defense verdict. Six of the eight jurors
found negligence but unanimously determined that the negligence did not cause
injury or death.


Author: Web Master
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