Recent Verdicts Report by LTC Claims

DECEMBER 2008 LONG TERM CARE REPORT

LITIGATION
1.

California
Jury Returns $2 Million Verdict Including Punitive Damages.

This was a wrongful death case in which the jury heard testimony that the cause of death was sepsis, which, in turn, was caused by infected bedsores. Testimony was also presented that the decedent, while a resident at the facility, suffered from numerous falls and lack of nutrition. There were a number of corporate defendants, as well as the treating doctor.
The jury found both the facility and the treating doctor guilty of negligence, and returned a total award against them of $1 million.  The jury apportioned fault between the facility and the treating doctor at 80% and 20% respectively. 
The jury further found that another corporate defendant had committed conduct that was “reckless, oppressive, fraud and malice” and awarded an additional $1 million in punitive damages against this corporate defendant.
(Estate of
Adams v.

Sunrise
Senior Living Services, et al., Case No. 05CC13119,

Orange
County
.)

2. $1 Million Settlement in

Lake County,
Illinois
For Fatal Falls.

The complaint alleged that the nursing home failed to take proper procedures to prevent the resident’s continuous falls. According to suit papers, the resident had demonstrated significant trouble walking because of her dementia, and had fallen at least six times in her first eight months at the facility. Despite her unsteadiness, the facility failed ever to have a fall assessment completed by the nursing staff. Eventually, the home implemented wheelchair and bed alarms to notify staff when the resident was up, but the alarm did not properly operate. The resident fell two more times, causing her to suffer brain injuries and hip and elbow fractures.  She eventually dying from her injuries.  (Estate of Menneke v.

Winchester
House, et al. Nov. 2008)
Plaintiff’s attorney noted that this is a record setting settlement in

Lake
County
in a long term care matter.

3.

Tennessee
Judge Throws Out $11.5 Million Verdict and Orders New Trial.
The original verdict included in this wrongful death action included compensatory and punitive awards. The decedent had been at the facility for four weeks.  During that time her weight had dropped from 105 lbs to 92 lbs. The cause of death was dehydration and malnutrition. At trial, plaintiff’s attorney asserted that the facility has falsified its records.
The trail judge offered no reason for setting aside the verdict and ordering a new trial.
(Estate of Matthews v. Life Care Centers of

America
, et al. (September 2008

Bradley
County
,

Tennessee
).

4.

Texas
Jury Awards $2.1 Million Against Facility and Its Medical Director.

Here, the resident expired of kidney failure a month after entering the facility allegedly caused by an untreated urinary tract infection and over medication.   
The jury awarded $900,000 in actual damages and $1.2 million in punitive damages.
The jury specifically found that the medical director was responsible for prescribing a pain killer at three times the appropriate dosage. Also, the facility fax machine was broken for at least two weeks, and the staff never saw an analysis of the resident’s urinary tract infection.
(Note: The owner of the facility had been convicted criminally of attempting to evade federal taxes related to nursing home operations.)  (Estate of Webb v.

Richard
Hills
, et al. August 2008)

5. $6 Million

Arizona
Verdict Where Resident Died from Overdose of Morphine.

Here the resident was transferred from a local hospital to the facility. At the hospital, the resident was first prescribed 15 milligrams of morphine twice a day. Later, the dosage was increased to 30 milligrams twice a day.  The facility administered both dosages twice a day.
An autopsy determined that the cause of death was acute morphine intoxication.
(Estate of Culpepper v. Manor Care et al.  Circuit

Court of Tucson,
Az.
)

6. Texas Jury Finds Risk Retention Group Properly Denied Physician’s Malpractice Claim.

Here, the doctor, while performing a tracheostomy, mistook a patient’s vertebrae for the treachea.   During the procedure, the doctor used such force that he fractured two of the patient’s vertebrae.
After receiving a request for records from an attorney representing the patient, the doctor sought medical coverage from an RRG.  In the application, the doctor failed to disclose either the events stated above or that he had received an attorney request for records.
After a malpractice suit was filed, the RRG rescinded the policy, declined to defend the doctor, and refunded the premium. The doctor subsequently settled the malpractice suit, and brought a breach of contract action against the RRG.

In returning a verdict for the RRG, the jury found that the doctor’s failure to disclose this event or the request for records constituted material false representations in the application with the intent to deceive the RRG. (Gouverne v. Care Risk Retention Group, Case No.:
2:07-ev-206,  

US Dist Ct.
Southern District of Texas).

7.

Oregon
Director of Nursing Services and A Nursing Aid Convicted In Criminal Case.

According to trial testimony, a facility resident was dropped during a transfer. The aid handling the transfer placed the resident back in her bed and stated she informed the DON of the fall.
No incident report was completed, and the family was never notified of the matter.  The resident was transferred to the hospital a few days after the incident and expired from the injuries suffered during the fall

Criminal sentencing is scheduled later this month and the Director of Nursing Services may be sentenced to serve time in jail.

LEGISLATION

8.

Pennsylvania
Bans Mandatory Overtime For Nurses.


Pennsylvania
has now joined a number of other states and has prohibited the practice of mandatory overtime for nurses at healthcare facilities. Under the new law, nurses generally cannot be required to work more than a 12-hour shift, though they will be able to do so voluntarily.  The overtime ban will take effect on
July 1, 2009. The delay in implementation is to give healthcare facilities the time needed to hire additional staff to compensate for the fewer hours worked.

OTHER NEWS

9. “Never Events” Reimbursement Rules Now In Effect.

Commencing in October, The Centers for Medicare and Medicaid Services will no longer reimburse healthcare facilities for certain conditions deemed "reasonably preventable" medical errors. Too, hospitals are not allowed to charge patients directly for medical care resulting from such errors.

Preventable conditions that will no longer be reimbursed include falls and certain other trauma, certain types of post-surgery infections, foreign objects retained after surgery, stage 3 and 4 pressure ulcers, and infections resulting from improper catheter use. These conditions are called "never events" as it is presumed they should never have occurred. CMS estimates these new regulations will save $60 million per year for each of the next three years. (See 42 C.F.R. 411, 412, 413, and 489.)

10. Bailout Package Will Help Seniors Housing Market.

The $700 billion bailout legislation is expected to have a positive effect on long-term care housing, according to an expert from the American Association of Homes and Services for the Aging. "The bailout should ease the credit crunch which is currently playing havoc with both the debt and equity markets that are so essential to tax credits," according to affordable housing expert Nancy Libson from AAHSA. "Equity investors, if they stay in deals, are adjusting (reducing) their investments. When debt financing is necessary, interest rates are rising, making deals infeasible. The (bailout) bill should provide relief in the debt and equity markets, providing a more stable financial system for this vital service for seniors." (McKnight’s
October 6, 2008)

11. Average Cost of Private Nursing Home Room Drops In 2008.

The charge for a private nursing home in 2008 dropped about a half percentage point over a year earlier, while the national average for a semi-private bed rose 1.1%.
The average private room charge dropped from $213 to $212 ($77,380), while the semi-private charge inched up from $189 to $191 ($69,715 annually), according to the MetLife Market Survey of Nursing Home &Assisted Living Costs.
Average assisted living daily charges rose 2.1%, from $2,969 per month to $3,031 ($36,372). The report noted that many advertised assisted living rates do not reflect what final costs will be. While "basic" service averaged $2,873 monthly, a "standard" package (with more services) averaged $2,985 and an "inclusive" package covering even more personal care averaged $3,354.
For more on average nursing home and assisted living rates in each of the 50 states, including sub-areas within them, visit www.maturemarketinstitute.com and click on "What’s New." (McKnight’s Oct. 27)

12. Democrats Set Sights On Healthcare Technology Legislation In 2009.

A new Democratic initiative to spur the adoption of healthcare information technology will be a top priority of the next Congress, said a top health policy adviser to House Speaker Nancy Pelosi (D-CA).
Wendell Primus said Pelosi would seek to pass a healthcare information technology bill in the early part of 2009. One version of such legislation, introduced earlier this year by Rep. Pete Stark (D-CA), contains penalties for providers who do not adopt the technology quickly. Primus says Pelosi will support the adoption of healthcare IT measures with or without such penalties. Primus spoke to the Healthcare Information and Management Systems Society meeting on Tuesday. (McKnight’s Nov. 3)

13. Tom Daschle To Head HHS.

President-elect Barack Obama has chosen former Senate Majority Leader Tom Daschle (D-SD) to be the next secretary of the Department of Health and Human Services.
Long-term care providers expressed approval regarding the choice.
The appointment must be confirmed by the Senate. Mr. Daschle, who served as Senate majority leader from 2001-2003, not only would serve as HHS secretary, but also will be a "White House Health Czar"—a point-man on health issues, according to CNN.

14.  CSP Reciprocal Retains LTC Claims.
Starting the New Year right, LTC Claims announces that, effective January 1, LTC Claims will serve as this group’s professional liability claim administrator.  Our Cindy Scott will handle these responsibilities. CSP Reciprocal is composed of a number of not-for-profit long term care operators in

Arizona
and

Colorado
.
 

 
James V. Marcanti
Executive Director

jmarcanti@ltcclaims.com

Shared with the permission of James Marcanti, ED LTC Claims

 
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