Legal Review & Commentary

Injury coverup leads to a $1.5 million settlement

Jan J. Gorrie, Esq., and Blake J. Delaney, Summer Associate
Buchanan, Ingersoll Professional Corp., Tampa, FL

News: An elderly nursing home resident with a history of dementia fell and hit his head. Evidence of the incident was concealed by the nursing staff. Fortunately, his daughter saw him the next morning, realized that something had happened, and arranged for him to be hospitalized. Following admission, it was determined that in addition to sustaining a head injury, the patient’s Coumadin level was excessive. Efforts to regulate the medication failed and the patient died five days later. The deceased patient’s estate brought suit against the nursing home, claiming negligence. The total settlement from various providers was $1.5 million.

Background: The 87-year-old man’s daughters were no longer able to care for him at home, so he was placed in a nursing home. He was admitted to the nursing home with a history of Alzheimer’s disease, past aortic value replacement with prosthesis, congestive heart failure, atrial fibrillation, and pleural effusion. One spring evening, a charge nurse forced the patient into his room, causing him to fall over his walker and strike his head. The charge nurse put him to bed and, with the assistance of other nurses, concealed all evidence of the fall.

The next morning, he was visited by one of his daughters, who recognized that he was not feeling well and was in great pain. She arranged for him to be hospitalized. Once admitted, the hospital staff discovered he had sustained a head injury and, more importantly, the internal injury was coupled with a "panic level" of the blood thinning medication Coumadin. He died five days later of intracerebral bleeding.

The estate brought suit against the attending physician, clinical laboratory, and nursing facility for negligence in caring for the deceased. Through discovery the plaintiffs obtained evidence implicating negligence, particularly on the part of the nursing home. Evidence against the nursing home included a facility investigation report naming the charge nurse as having injured the patient.

The facility’s report was then contradicted when another of the nursing home’s senior nurses misrepresented the facts of the incident to the state regulatory agency. In addition, nursing home records indicated that the patient had a history of falling and that he had, in fact, fallen earlier that day. However, the care plan prepared by the facility for the deceased failed to address the life-threatening risks such as his propensity for falling, wandering, and bleeding due to the blood-thinning medication. Furthermore, the charge nurse did not even know what a care plan was and was unable to identify one.

The facility records also indicated that the nursing home employed the charge nurse as a supervisor over the patient’s entire unit, even though he had no prior nursing home experience. The charge nurse’s lack of qualifications violated the facility’s own job qualification requirement of a minimum of one year of nursing home experience.

The charge nurse testified that he had no idea what any of the facility’s policies or procedures were on any medical or nursing topic, much less topics pertinent to the care of this patient.

The plaintiff further demonstrated the charge nurse’s incompetence by producing records that the nurse had been suspended for three days prior to the patient’s fall. Also contributing to the charge nurse’s liability was the fact that he held a second full-time job as a prison nurse, and that the nursing home was fully aware of this fact.

The estate averred that all of the staff nurses failed to recognize the excessiveness of the blood-thinning medication, ignored the family’s repeated requests to stop administering it, and failed to contact the attending physician regarding the medication in a timely manner. The nurses also failed to follow up on critical lab testing that the attending physician had ordered on the date of the incident and failed to respond to the communications from the laboratory regarding the patient’s dangerously high levels of Coumadin.

Discovery revealed that two weeks prior to the incident, the nursing home administrator circulated a memorandum stating that all employees were responsible for effective follow-up on lab results. In addition, records obtained from the regulatory agency showed that the facility had been reprimanded for staffing shortages and staffing competency issues.

The patient’s roommate testified that he saw the fall and that the charge nurse and other nurses cleaned blood from the floor. The roommate also testified that the patient was moaning and making sounds indicating he was in pain throughout the night and the next morning, providing evidence of his conscious pain and suffering. The patient’s daughter corroborated the presence of pain the next morning.

Although the defendants argued that the patient died from a stroke rather than from intracranial bleeding, each settled. The attending physician and his business paid $190,000 on a $200,000 policy limit. The clinical laboratory paid $125,000. Approximately one week prior to trial, the nursing home settled for $1,275,000.

What this means to you: Nursing home litigation is on the rise, and the evidence reported in this case seems to support the premise that some increase is merited. In light of the evidence, it’s little wonder the defendants were interested in settling their case.

The single most striking aspect of this case was the cover-up, not only at the time of the incident but also before the state’s regulatory agency. It seems that no one on staff actually came out and told the patient’s daughter what actually had occurred.

"The actions taken by the nurses in this instance were in clear violation of the Code of Ethics for Nurses as adopted by the American Nurses Association at its June 2001 meeting," states Cheryl A. Whiteman, RN, MSN, CPHRM, a risk manager for Cigna Healthcare of Florida Inc., whose opinion does not necessarily reflect Cigna’s.

"Clearly, the charge nurse that caused the patient to fall, the nurses that helped clean up’ afterwards, and the supervisory nurse that provided erroneous information to the regulatory agency were not promoting, advocating for or striving to protect the health, safety, and rights of this particular patient. Neither were the nurses preserving integrity and safety, nor were they particularly compassionate or respectful toward the patient. Their actions were quite the opposite," she says.

There is a national shortage of nurses and, rather than hire a perhaps more qualified but albeit temporary and more expensive agency person, staff nurse positions may be filled by nurses that are not as highly skilled or trained as desired. Further, nurses, like other workers, should be allowed to work more than one full-time job.

"However, even in times when it is difficult to fill positions with nurses that are not already overworked, basic qualifications should be covered or at least noted in the employee’s personnel file. While we are not told why the nurse had been suspended, it does seem that the facility did know of at least some of the nurse’s shortcomings," notes Whiteman.

It is almost impossible to believe that a nurse would not be aware of the need for, or at least recognize, a patient care plan, particularly for patients in long-term care facilities.

"Regardless, at a minimum, the caregiver should have access to the patient’s medical history," Whiteman says. "The patient history in this case would have played a pivotal role in addressing the situation. At a minimum, the nurse should have known that the patient was on a blood thinner and known that falls and even bumps suffered by such patients may be more critical.

"The lack of a patient care plan can lead to a lack of coordinated care. When caregivers are not provided with the necessary tools, it makes it difficult to render the care needed. Although, in this case it might not have had any positive effect given the charge nurse’s actions toward the patient," she adds.

It is not surprising that all of the defendants settled prior to trial. Even the clinical laboratory recognized the prudence in a nominal settlement. Indeed, the decision to settle may have been triggered by the fact that many states have laws penalizing the abuse, neglect, and abandonment of elders and dependent persons.

"You never want to settle, even for minimal amounts, unless it is necessary. But the stack was really against the providers in this instance. Any time you have an overtly callous act by a person who is expected and charged with care giving, it is difficult to avoid liability," concludes Whiteman.

Reference

Estate of Oscar Gonzalez, deceased, O. Lopez de Gonzalez, et al. v. Unidentified Nursing Home, Unidentified Parent Company of Nursing Home, et al., Harris County (TX) Probate Count, Case No. 320195-401.