Defense Verdict in Nursing Home Case for Kristen M. Benson, Esq., in Oneida County Supreme Court

Kristen M. Benson, Esq. successfully defended a nursing home in a case venued in the Oneida County Supreme Court before the Honorable Bernadette T. Clark. Plaintiff decedent had been admitted to the short term rehabilitation unit of the nursing home on May 21, 2008, after undergoing surgery to repair a significant femur fracture that occurred after a fall at home. Plaintiff claimed decedent was allowed to fall at the nursing home on May 24, 2008, causing a re-fracture of his femur, because the nursing home failed to provide two person assists in accordance with the care plan because he was a fall risk. Plaintiff further claimed that, as a result of subsequent re-fracture, he was rendered immobile which led to his worsening health condition and caused his cirrhosis, which had been stable, to be aggravated with ascites diagnosed on June 13, 2008. He began to complain of upper respiratory symptoms on June 14, 2008 and was diagnosed with pneumonia on June 17, 2008. Plaintiff decedent was discharged to the hospital on June 21, 2008 when his condition worsened. His condition continued to decline at the hospital. Efforts to abate his ascites failed, he developed uncontrollable varices, multi system organ failure and he passed away on July 3, 2008.

The daughter, as Administratrix of the estate, commenced the action seeking damages for injuries her father allegedly sustained at the nursing home due to an alleged violation of New York Public Health Law Sec. 2801-d which provides, in relevant part, a residential health care facility that deprives a patient of any right or benefit created or established for the well-being of the patient by the terms of any federal regulation shall be liable to the patient for injuries suffered as a result of said deprivation.

Plaintiff claimed the nursing home violated the following federal regulations: (1) 42 CFR 483.25(h)(1)(2) Accidents (The environment is to be free of accident hazards and the resident is to receive adequate supervision and assistance to prevent accidents); (2) 42 CFR 483.25 Quality of Care (The facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of the resident in accordance with the comprehensive assessment and plan of care); (3) 42 CFR 483.25(m)(2) Medication Errors (The facility must ensure that residents are free of any significant medication errors which cause the resident discomfort or jeopardizes his health and safety); (4) 42 CFR 483.20 Resident Assessment (The facility must conduct a comprehensive, accurate, standardized reproducible assessment of each resident functional capacity. There must be orders upon admission. A comprehensive assessment must be done within 14 calendar days after admission and within 14 calendar days after the facility determines, or should have determined, there has been a significant change in the physical or mental condition); (5) 42 CFR 483.20(k) Comprehensive Care Plans (The facility must develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet medical, nursing and mental and psychosocial needs identified in the comprehensive assessment within 7 days of completion of the comprehensive resident assessment); (6) 42 CFR 483.20(k)(3)(i) Professional Standards (The services provided by the facility must meet professional standards of quality); (7) 42 CFR 483.10(b)(11) Resident Rights - Notification of Changes (A facility must immediately inform the resident; consult with physician; and if known, notify the legal representative of resident or an interested family member when there is an accident involving the resident which results in injury and has the potential for requiring physician intervention, a significant change in the physical, mental or psychosocial status of the resident, and a need to alter treatment significantly), and (8) 42 CFR 483.75(l) Clinical Records (The facility must maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete, accurately documented, readily accessible, and systematically organized).

Plaintiff presented the expert testimony of a Registered Nurse (RN) and Internal Medicine/Gerontologist in support of the alleged federal regulation violations. The expert Internal Medicine/Gerontologist also testified decedent was at an increased risk of pneumonia upon admission, he was at a further increased risk of pneumonia after the re-fracture, and that his lack of mobility led to his pneumonia and worsening medical condition which caused the ascites, varices, organ failure and eventual death. The Plaintiff expert testified the pneumonia and aggravation of his cirrhosis could have been prevented if the nursing home had a proper care plan in place and had provided the proper treatment in accordance with the care plan.

Defendant denied claims that it violated the federal regulations cited above. The proof at trial did not support a finding that decedent had an accident. The nursing home had no record of any fall and, if he had fallen, he would have needed assistance to get up. In addition, he never complained about a fall or any acute pain or injury. Rather, a displacement of the fracture was diagnosed on June 6, 2008 when he was seen for a routine follow up x-ray that had been scheduled by the surgeon prior to his admission to the nursing home. The expert orthopedic surgeon for the Defendant testified he reviewed the films and the displacement seen on the films was because there was a failure of fixation. The repair failed because the surgeon who did the repair did not use a reconstruction nail placing it into the head or neck of the femur to secure the repair. The failure of decedent to complain of acute pain and diagnosis over two weeks later is consistent with a gradual failure. If the displacement had occurred as a result of trauma there would be immediate pain that would have required emergent treatment.  The treating surgeon acknowledged he could have placed a nail into the head or neck but he testified it was not necessary to get fixation. He denied the opinion of the expert for Defendant that the repair failed but agreed the that the fracture seen on the June 6, 2008 films would have resulted in significant increase in pain and required emergent treatment. The proof established decedent did not make any complaints of injury, increased pain or need to see a doctor in the 13 days that followed the alleged fall before the June 6, 2008 x-rays were taken.

The proof at trial established the remaining allegations that federal regulations were violated had no merit. The nursing home records in question and testimony at trial established orders were completed on the day of admission and proper comprehensive assessments with written care plans were timely in place in compliance with the federal regulation requirements. The reliance of Plaintiff on inaccuracies in medical records for dispensing narcotics to decedent as evidence he did not get all of his pain medication and, therefore, was in pain was refuted based on the chart entries that established he was given pain medications and his pain was under control at all times. The testimony also established the plaintiff decedent did not have an increased risk of pneumonia and there was no need for a care plan for pneumonia. The nursing home records documented he was never immobile throughout his admission. He was transferred daily between his bed and wheelchair and self-propelled on the unit attending physical and occupational therapy.

Defendant also refuted the claims that he died because the re-fracture led to a worsening of his medical condition in that he developed pneumonia which aggravated his cirrhosis. The medical records from an infectious disease specialist and pulmonology specialist at the hospital noted plaintiff decedent did not have pneumonia. These specialists concluded his symptoms and objective findings were due to his liver failure and the development of ascites due to cirrhosis. The defense expert in Internal Medicine/Gerontology demonstrated his worsening medical condition was due to his cirrhosis and there was nothing the nursing home did to cause his condition to progress and there was nothing the nursing home or any medical professional could have done to prevent his condition from progressing as evidenced by attempts made at the hospital.

At the conclusion of an 8-day trial, the jury deliberated for twenty-five minutes and returned a verdict in favor of the nursing home on the first question finding there was no violation of New York Public Health Law Sec. 2801-d.

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