Legal Review & Commentary

Nursing Home's Failure to Administer Laxative to Resident Leads to Death; $5.3M Verdict

by: Radha V. Bachman, Esq.

Buchanan Ingersoll & Rooney PC

Tampa, Florida

Lynn Rosenblatt, CRRN, LHRM

HealthSouth Sea Pines Rehabilitation Hospital

Melbourne, FL

News: A resident at an assisted living facility had significant issues with constipation and bowel issues for which she was prescribed certain medications. The resident claimed that the nursing facility did not administer the medication as required by her physician and that she began showing signs of an obstruction after one week of failing to have a bowel movement. Enemas and other treatments were administered by nurses at the facility, but ultimately she was taken to the emergency room with a ruptured colon. The woman died a few days later. A $5.3 million verdict was entered against the defendant in Tennessee.

Background: An 84-year-old woman was admitted to an assisted living facility in mostly good health. The woman's most significant problem was chronic constipation, for which she was prescribed certain laxatives. Over the course of a month, the woman typically received 60 doses of the medication. The woman complained that she was not being given adequate doses of the medication to control her constipation and bowel issues. The woman ultimately began showing signs of an obstruction, as she had not had a bowel movement in more than a week. The facility's nurses attempted to administer an enema and other treatments but were unsuccessful. The woman's abdomen became distended, and she worsened. She was rushed to the emergency room, where she was diagnosed with a ruptured colon. She passed away a few days later from sepsis caused by the rupture.

The plaintiff in this case alleged negligence due to the facility's failure to administer the laxative as required. During the two months prior to the woman's death, only 16 doses of the medication were administered in each of those months. The plaintiff also claimed that the facility's use of an enema in the face of an obstruction was also negligent. The defendant countered that the woman's condition worsened because the woman failed to discuss the issue with the facility's employees, and that the bowel rupture was not due to constipation, but attributable to a twisted colon. The defendant sought to compel arbitration based on documents signed by the woman. However, the court denied the motion, claiming that the defendant had waived its right to arbitration by actively participating in the discovery process.

The jury returned a verdict of $300,000 for compensatory damages and $5 million in punitive damages. Punitive damages were also assessed against the facility's two participating nurses. The verdict totaled $5,315,000.

What this case means to you: The background narrative indicates that the patient resided in an assisted living facility, which has a very different connotation from a skilled nursing and/or long-term care facility in terms of staffing and skilled services. Every state has very different licensure requirements for assisted living, as opposed to skilled nursing, which is generally regulated by Medicare. Long-term care in a nursing home is also state-regulated and highly specific.

Assisted living facilities can be anything from apartment residences with meals and housekeeping options to fully assisted care with the custodial activities of daily living. They can be large buildings that are corporately owned or private room-and-board residences. In many states, size dictates the need for licensure, and small private homes with four or fewer residences may be exempt from oversight, but still very much liable for neglect.

Generally, an ALF is not licensed to provide skilled nursing services, and the resident depends on private or Medicare-reimbursed home health services, as needed, based on medical presentation. In most ALF settings, the resident is responsible for providing his or her own medications, but may be given assistance with taking them — much as one would expect in a family-oriented situation, where an adult child provides oversight on the daily activities of a parent.

As a rule, larger ALF facilities employ licensed nurses to oversee residents, particularly in regard to daily medications. The resident takes the medications (both prescription and/or over the counter) with the nurse assuring that the resident actually takes them as prescribed, timely and accurately. Consistent with this approach is a daily assessment of the resident's personal presentation and/or any unusual behavior or adverse event that may indicate problems arising.

This elderly woman clearly suffered from professional neglect reflective of a diminished standard of care. In such non-skilled settings, nursing assessments may or may not include a full medical record, whereas in a skilled long-term care facility, one is always required. Nonetheless, that does not remove the obligation of appropriate oversight and reporting. Constipation and laxative dependence are exceedingly common in the elderly population, as is urinary retention and incontinency, so elimination patterns should be a prime consideration in the daily monitoring of residents in any setting.

Her history indicated that her primary problem was constipation and that she was laxative-dependent. The narrative indicates that she was aware that she had become constipated and complained that she felt she was not receiving sufficient doses of her regular laxative medication. Apparently, her concerns were disregarded. It appears that she was not being assessed for constipation, as she became obstructed. Bowel obstruction has obvious signs, and in a healthy adult almost always is the result of unresolved constipation. Increased-strength laxatives and enemas are safe and effective only in the early stages of impaction. Once the colon is obstructed, they can be very dangerous and can actually cause rupture. Emergency care was initiated — but far too late to prevent this unfortunate death.

There was no indication that an assessment of her elimination pattern was ever conducted upon admission or during her stay at the ALF. Therefore, the licensed staff that was overseeing her medications had no basis on which to assess any potential for problems, other than the concerns voiced by the resident, which may not be accurate or credible. This strongly suggests that some manner of assessment and report should exist in any setting where a proprietor assumes responsibility for the custodial care of a resident.

It does not appear that once the resident reported that she felt she was constipated that her bowel frequency was monitored to determine the severity of the problem. There are also indications that her laxatives were not administered as ordered, or that no one was aware that she required laxatives that frequently, which could be the case if she was dependent on non-prescription over-the-counter (OTC) medications. There was no indication that any type of record was being kept on the effects of the medications that were being administered. As many elderly patients frequently rely on OTC medications for the inconveniences of old age, a personal history upon admission is essential to safety and health management. A daily record of medications, including non-prescription drugs, that is updated on a regularly scheduled basis, such as a common MAR, is a standard practice of care where medication oversight is required. As many foods and commonly used OTC drugs have significant interactions with prescription medications, a medication administration record is essential.

Additionally, in an ALF, there should be a defined plan of care that delineates the resident's daily custodial care needs and an assessment of his or her overall condition that is passed off between shifts. This should be reviewed regularly at a team meeting together with the MAR and any information provided by family and from physician visits. All relevant information should be kept in the resident's health folder under HIPAA guidelines. Had all this been in place, this disaster would have been avoided.


Bedford County (TN) Circuit Court, Case No. 10204.