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Legal Review & Commentary: Swarm of fire ants attacks nursing home patient resident: $5.35 million Alabama verdict
By Edward J. Carbone,
Esq., Jan J. Gorrie, Esq., and Richard Oliver, Esq.
Buchanan Ingersoll Professional Corp.
News: One summer evening, fire ants attacked a 79-year-old nursing home patient resident as she lay in her bed. The next day, the patient’s daughter took her to a regularly scheduled doctor’s appointment outside of the facility, and the physician aggressively treated her for multiple bites. The fire ants attacked again that night and the patient was severely bitten. Because of the severe bites, she developed a staphylococcal infection and and the trauma further exacerbated her dementia. The nursing home resident brought suit against the nursing home facility and its pest control company. The jury awarded her $5.35 million and attributed fault equally between the defendants.
Background: One the evening of Aug. 22, 1999, the 79-year-old nursing home patient resident, who suffered from dementia, was attacked by fire ants. On several occasions that summer, nursing home employees had identified the presence of fire ants within the facility. Cans of spray insecticide were distributed for workers to use as needed.
The following morning, the patient’s daughter picked up her mother for a routine office visit with her private physician. She complained of itching and burning in her legs, but her daughter remained unaware of the attack by the fire ants. Through the course of her examination, The physician determined that the source of the patient’s leg discomfort complaints was fire ant bites. When the daughter returned to the nursing home facility with her mother, she notified the facility staff about the bites.
The next night, the fire ants returned. A nursing home employee discovered the patient covered by a swarm of fire ants. Physical proof, as well as testimony at the trial, established that thousands of fire ants had swarmed over the elderly and confused patient. She had ants coming out of her ears, mouth, nose, and in her genital area. The nursing home personnel immediately placed the patient resident in the shower in an attempt to repel the ants and wash them off the patient’s body. In the process of assisting the patient resident, the workers suffered approximately 70 bites from the swarm.
The patient suffered from multiple, severe fire ant bites and developed a staphylococcal infection. The strain of the impact of the injuries and nature of the incident exacerbated the patient’s pre-existing delusional symptoms, leading to an increases in hallucinations. Her medical bills for treatment of the fire ant bites and staphylococcal infection alone totaled more than $120,000.
The patient brought suit against both the nursing home and the facility’s pest control company. She sought compensatory and punitive damages from both defendants. As to the nursing home, the plaintiff noted that the fire ants had been identified on the property for several weeks and that the nursing home failed to timely contact its pest control company to investigate and intervene — particularly in light of the fact that the facility was on notice that the fire ants were known to have previously had harmed the patient. The plaintiff averred claimed that, given the patient’s resident’s underlying mental condition in this case, the nursing home failed to ensure the safety and health of this mentally diminished impaired patient resident. The pest control company was criticized for failing to properly treat the nursing home for fire ants. While a proper pest control treatment of the facility should have taken approximately 45 minutes, the plaintiff introduced evidence that the pest control company's treatments at the facility took only eight minutes.
In its defense, the nursing home argued that the fire ant attack was not foreseeable. While conceding to isolated instances in which fire ants were noted by staff, the facility claimed it had no reason to expect an imminent infestation on the scale of the one that ultimately occurred. The nursing home claimed that it acted reasonably in contracting for pest control, reporting the presence of fire ants to the pest control company and relying upon the pest control company to adequately treat the facility.
The primary defense raised by the pest control company was to argue that the court lacked subject matter jurisdiction because of a binding arbitration provision in the contract between the nursing home and pest control company. The plaintiff argued that she was not bound by an arbitration provision contained in a contract to which she was not a party. The court agreed and retained jurisdiction.
The pest control company then filed suit in federal court. Even though the federal case had not yet been heard, the state trial court judge refused to delay trial any further. At trial, the pest control company then advised that instead of using the corporate representative it had produced during the depositions for deposition, it would rely on a local manager to conduct support its defense. The plaintiff moved that the original representative should appear at trial. The court concurred and ordered his presence. The pest control company sought a writ of mandamus on this issue; its motion was denied.
At trial, the pest control company argued that its treatments were sufficient under the terms of its contract with the nursing home. After eight days of trial, the jury awarded $5.35 million to the nursing home resident. The verdict was assessed equally between the defendants and equally between compensatory and punitive damages.
The nursing home motioned moved for a new trial; it claimed the verdict was excessive and that its corporate net worth was only $200,000. It further argued that punitive damages were not warranted because its conduct constituted only simple negligence, not wantonness, saying that although the fire ants had been randomly seen before the attacks, there was no prior sign of an infestation. The pest control company filed its own post-trial motion, stating that its conduct was inextricably linked to the its contract with the nursing home and that the verdict was excessive.
What this means to you: Nursing home litigation and fire ants have become like the plague in some jurisdictions. This case demonstrates what can happen when the two forces are combined.
Fire ants are a serious and even deadly threat to children, aged adults, animals, and — under the right conditions — just about every living thing. Those of us who live with the threat of fire ants know how much more deadly they are because they do not tumble buildings and you don’t usually know you have them until the pain of the bite is felt.
"Unfortunately, the elderly and young are not as able to escape from harm’s way and, as seen in this case, even the more agile health care workers fell victim to the swarming attackers," says Judy Kyle, RN, JD, of Young Bill & Fugett, PA, in Pensacola, FL.
The nursing home staff in this case not only did not appreciate the threat of the fire ant infestation, they did not understand the resistance of the fire ants to over-the-counter remedies in building infestations. The facility’s reaction to the fire ants’ presence was uninformed and, consequently, inadequate. While the nursing home did engage the services of a pest control company, neither seemed to adequately address the situation and each appeared unaware of the extent of the infestation.
"Yet, the facility had the resources it needed to understand and respond appropriately to the threat: a phone call or an Internet search. Each state government regulates, usually through its agriculture department, the pesticide chemicals and companies that apply them. The states employ entomologists who could have informed the facility of the dangers and difficulties associated with fire ant infestations. They could have provided a list of firms that were licensed and insured to exterminate the fire ants. By creating a record of an informed response, the facility might not avoid all bad outcomes but, if it had acted reasonably, it might have avoided liability and the payment of damages to the injured persons," Kyle says.
Facilities are not guarantors of perfect environments that prevent all harm to their residents. The facility only needs to act appropriately, reasonably, and with sufficient documentation of these responses to reduce or eliminate the legal consequences of an injurious event.
"Often we think of the quick, commercial response without becoming an informed consumer. When you have an invasion by ants, wasps, and a variety of other pests, the first thing to do is to gather information from an unbiased expert and then to request appropriate assistance if necessary. In the past, there was an excuse regarding the time it took to locate the information needed; now the same computer the business uses to bill the residents can be used to access the information to protect the residents. From a liability standpoint, an ineffective, uninformed response is worse than no response because the threat can be characterized as foreseeable," adds Kyle.
Despite the defendants’ best efforts to use procedurally maneuvers to avoid liability and place to point the finger of blame with at the other, in the end, there was no escape for either from the swarm of fire from liability unleashed by the plaintiff.
• Devers v. Greystone Retirement Center and Terminex International, Madison County (AL) Circuit Court, Case No. 99-2477.