Legal Review and Commentary

Nursing home resident suffers head injuries when thrown to floor from wheelchair

By Blake J. Delaney, Esq. Buchanan Ingersoll & Rooney, Tampa, FL

News: A nursing home resident was thrown to the floor after her foot and leg became caught in her wheelchair. The employee pushing the woman's wheelchair had apparently disregarded warnings that the woman's foot and leg were caught and had continued pushing the chair, including giving it a hard lunge. The woman suffered severe injuries to her head and died 14 months later. Although the nursing home at first covered up the cause of the woman's injury, the family eventually found out what happened and sued the facility. A jury awarded the plaintiffs $417,461.39, finding that the nursing home employee had acted negligently but that she had not caused the patient's eventual death.

Background: An 87-year-old woman was a resident at a nursing home, where she required assistance with the basic activities of her daily living. One day while watching television sitting in her wheelchair, the woman was asked by one of the nursing home's employees whether she was ready for bed. When the woman indicated that she wanted to stay up for a short while longer, the employee became angry and insisted that she go to bed.

The employee began pushing the woman to her room in her wheelchair, but the patient's foot slipped underneath the wheelchair and became stuck. Although another employee notified the first employee that the woman's foot and leg were caught up under the wheelchair, the first employee kept pushing the woman forward and then gave the chair a hard lunge. The woman was subsequently thrown from her wheelchair, and the wheelchair flipped over on top of her. The woman's head was crushed against the concrete floor, and she began bleeding profusely from the head. She became totally unconscious for a time.

The nursing home informed the woman's six daughters and two sons of the injury, but it did not tell them the real reason the patient fell from the wheelchair. The nursing home apparently told the woman's family that their mother had fallen out of her wheelchair before an employee could catch her. The woman was sent to a hospital for treatment and then discharged to her family for home care, where she was confined to her bed. She developed pneumonia and then a sepsis infection that led to her death 14 months later.

The children later learned of the actual cause of the accident when the nursing home's nonoffending employee who witnessed the incident told them what really happened. The children filed suit against the nursing home and alleged causes of action for negligence and for violation of their mother's statutorily granted rights as a resident. The plaintiffs' witnesses included the nursing home's nonoffending employee and an expert witness who testified that the fall caused the decedent to suffer physical and mental deterioration attributed to post-traumatic encephalopathy, which is a nonspecific diagnosis indicating that a person's brain has stopped functioning properly.

The nursing home defended the suit and claimed that the woman had been suffering from numerous pre-existing medical problems, including atherosclerotic heart disease, hypertension, and Alzheimer's-type dementia. The nursing home entered into evidence a CT scan performed after the fall showing no evidence of any acute internal damage and argued that the cause of death was atherosclerosis.

A jury found that the nursing home's employee had negligently injured the patient, but that the employee was not the cause of the patient's ultimate death. The jury also determined that the nursing home and its employees had not deprived or infringed upon the patient's rights as a resident in such a way as to cause her injury or death. The jury awarded the plaintiffs $417,461.39 in damages. The plaintiffs moved for a new trial with respect to the jury's finding as to cause of death, but the court denied the motion.

What this means to you: The actions of the nursing home may not have violated the patient's rights in a manner that caused her death, but it certainly was in the most egregious terms a violation of her right to receive compassionate care, says Lynn Rosenblatt, CRRN, LHRM, risk manager at HealthSouth Sea Pines Rehabilitation Hospital in Melbourne, FL.

The cause of death of elderly residents in nursing homes often is elusive. "They reside in such settings most often because of advanced age, frail health, and the inability to care for themselves," notes Rosenblatt. In this case, the patient's age and her Alzheimer's-type dementia most likely resulted in her need for custodial care. Her hypertension and atherosclerosis also contributed to her dementia and over time likely would have caused deterioration and other complications that eventually would have led to her death, had she not died from pneumonia and sepsis first.

Rosenblatt questions whether the head injury was a direct cause of the patient's death. "That is a difficult question to answer, and this jury decided that it wasn't," observes Rosenblatt. "Another jury could have easily decided exactly the opposite." Although it is virtually impossible to separate the immediate cause of death from contributing factors, particularly in the elderly with significant end-of-life disease processes, it would be insensitive to say that the head injury that she sustained did not have some bearing on her rapid decline from her pre-incident condition.

By deciding that the injury was not a proximate cause of the patient's death, the jury then had to evaluate whether the resident's rights had been violated by the conduct. "Because the jury had not attributed the woman's death to the incident, the logical conclusion would be that any infringement upon the patient's rights also was not a direct cause of her death," says Rosenblatt. The jury's decision nevertheless did not fully exonerate the defendants. Rosenblatt notes that the verdict did spare the nursing home and its employee the possibility of criminal charges. In this case, those criminal charges could have included manslaughter, given that the scenario indicates that the employee acted vindictively and in wanton disregard of the resident's best interests.

One of the major issues present in this case is the course of conduct undertaken by the nonoffending employee who witnessed his or her colleague injure a resident. Many states have laws that protect the elderly from neglect and abuse, and reporting the abuse of children, dependent adults, and the elderly is considered a legal obligation, particularly for health care workers. In Florida, for example, where this case occurred, section 415.1034, Florida Statutes, mandates that any physician, nurse, paramedic, health professional, or nursing home staff, among others, who knows or has reasonable cause to suspect that a vulnerable adult has been or is being abused, neglected, or exploited, immediately report such knowledge or suspicion to the central abuse hotline. Rosenblatt notes that most states have 24-hour manned phone lines to accept such reports and channel them to the appropriate agencies for immediate investigation. "Had the individual who witnessed the scene between the resident and the offending employee reported the incident, the nursing home would have been investigated, and rightfully so," notes Rosenblatt. An angry health care worker had willfully taken retribution against a defenseless individual who was dependent upon that employee for compassionate care. The resident's refusal to go to bed at the request of the employee was within her rights. The fact that the nursing home employee thought otherwise and retaliated against her because she had exercised her choice was a violation of those rights, says Rosenblatt.

Most states also require that patient rights be posted in health care establishments so that patients, families, and visitors are aware of the expectations and available avenues of redress. And laws are also in place to require the prominent display and disclosure of the agencies to contact when abuse and/or neglect is perceived. "The individual reporting does not necessarily have to be a fact witness," says Rosenblatt. "The suspicion of abuse or neglect alone is sufficient to warrant a report." In Florida, for example, Section 400.022, Florida Statutes, mandates that all nursing home facilities adopt and make public a statement of the rights and responsibilities of the residents of such facilities and treat such residents in accordance with the provisions of that statement. Florida's statutorily mandated rights might be more comprehensive than those present in other states, but it is an excellent model to which nursing homes outside of Florida can aspire.

Florida law further requires a nursing home to orally inform each resident of these rights and provide each resident with a written copy of these rights at or before the resident's admission to a facility. The resident's rights also must be made available to each staff member.

Rosenblatt further notes that health care providers must have policies in place to deal with grievances about care, and the patient and their representatives must be given information as to how to file a complaint. Florida law, for example, requires a nursing home to prepare a written plan and provide appropriate staff training to implement the policy. And as a condition of participation in the Medicare program, not to mention sound business practice, all complaints must be handled timely and without retribution. "If the nursing home in this case had informed the family truthfully of the situation, the home would have certainly met the most basic of its obligations," says Rosenblatt.

Another issue highlighted by this scenario is the type of training nursing homes need to be giving to their employees. Rosenblatt notes that all states mandate that nursing homes train their employees to deal in a productive, nonreactionary manner toward residents. Employees in these settings particularly must be given training on techniques that win the resident's confidence and cooperation and prevent such situations from getting out of control. Employees must undergo background checks to establish without doubt that nothing in their past might contribute to a pattern of abuse in the future. Employees must also be instructed to understand the difference between the resident's rights and the employee's responsibility.

"If the narrative is accurate, the employee showed wanton disregard for the resident's safety. One employee warned the other that the women was at risk for injury, but the employee pushing the wheelchair failed to heed the warning and continued forward," observes Rosenblatt. In what appeared to be a fit of anger, the employee then purposely displayed a violent response by lunging the wheelchair forward, which was the direct cause of the women's injury. "This was certainly abuse and most likely a battery," she notes.

Ensuring that situations such as the one described in this scenario do not happen is of paramount importance to nursing homes, but not just because of the potential money damages flowing from a lawsuit. Rosenblatt notes that had this incident been reported, as it should have been, the nursing home would have been sanctioned, and the employee would have been most likely the subject of a criminal investigation. This investigation likely would have resulted in the employee's removal from the facility and, perhaps, the health care industry. "Nursing homes need to be particularly careful about ensuring that their residents are not exposed to the uncertain frustrations of employees resulting from caring for demented patients whose behaviors can be trying and challenging," says Rosenblatt. The nursing home also would have been found deficient and been given guidance on improving its educational and support programs to ensure more appropriate responses in such situations. An investigation also could have led to the discovery of more issues that were covered up in the past, with the result being that the home might lose its license. After all, the failure of the home to disclose fully, accurately, and timely what had occurred to the patient's family might indicate knowledge of an ongoing pattern of abuse of the residents.

It is apparent that the nursing home in this case acted in bad faith as to its responsibility to disclose. It purposely covered up the willful actions of one of its employees and refused to acknowledge the role that the incident played in most likely hastening the woman's death. The home's obligation was to protect her, but in reality it caused her bodily harm. The jury acknowledged that fact with its finding of negligence. Indeed, Rosenblatt thinks that the $400,000 award was relatively generous. Although the woman's elderly age and her overall mortality were factors contributing to the amount of the award, Rosenblatt notes that it could have been substantially more. The resident had been relatively stable in terms of her overall health and was living out her life with some degree of quality. All of that was taken away as a result of the angry response of one individual. The home violated the trust that the state places in it by granting a license, and that violation resulted in the diminishment of an individual's quality of life, Rosenblatt concludes.

Reference

Polk County (FL) Circuit Court, Case No. 53-1999CA-002950.