Legal Review & Commentary

Patient falls and dies in TX, and $356,000 is awarded

By Jan J. Gorrie, Esq., and Blake Delaney, Summer Associate
Buchanan Ingersoll PC, Tampa, FL

News: After having been diagnosed with a broken hip, a 90-year-old nursing home resident was discharged from the hospital. Three days later, a nurse’s aide at the nursing home attempted to move the patient from her wheelchair to her bed by herself. The patient fell and hit her head, sustaining a subdural hematoma. She was taken back to the hospital, where she died the following day. Her estate brought suit and was awarded $856,000 by the jury. The court subsequently reduced the verdict to $356,000 after eliminating the punitive damages assessment.

Background: The 90-year-old woman had been a resident of a nursing home for several years. She was severely osteopenic, with a history of fractures, and she also had a history of stroke, seizure disorder, dysphasia, PEG tube placement, and several other chronic conditions. Moreover, she had experienced a decline in communication, rendering her largely noncommunicative. She had recently been hospitalized for a urinary tract infection, and doctors also diagnosed her as having a hip fracture. Given the patient’s age and underlying medical condition, the doctors decided not to operate on the hip, choosing instead to discharge her to the care of the nursing home.

For years the woman’s nursing care plan had called for two-person transfers; however, the facility had been doing single-person assists safely for most of the time that she had lived there.

Three days after her discharge, the nursing home provided inservice training to the staff to demonstrate the proper two-person transfer technique, which was to be used on the patient due to her changed condition. However, the nurse’s aide who was responsible for the patient in the afternoon did not attend the training session. That afternoon, the aide performed a single-person transfer to move the patient from her wheelchair to her bed as she had done in the past. But this time, the woman fell. She apparently hit her head, as evidenced by a significant cut on her ear. After the fall, a cursory neurocheck indicated she was stable. She was taken to the hospital for stitches and X-rays, but then was discharged back to the nursing home. When the nursing home staff refused to accept her due to her decreased mental status, she was re-hospitalized. Upon her return to the hospital, doctors diagnosed her as suffering from an intracranial bleed, and she died the next morning.

The deceased’s estate and her two sons brought a variety of claims against the facility, its administrator, and its nursing director. They argued that the defendants were negligent in failing to, among other things, establish and follow an appropriate nursing care plan to safely transfer the patient, supervise and train their employees, ensure compliance with state and federal regulations, and otherwise provide health care services that were reasonably prudent under the same or similar circumstances.

The plaintiffs further alleged violations of state and federal regulations governing nursing home facilities. Finally, the plaintiffs claimed that the defendants’ negligence, coupled with promises to the deceased and her family members to care for the woman, constituted fraud, malice, and other charges in violation of the jurisdiction’s penal code.

The plaintiffs sought both compensatory and exemplary damages. The estate claimed damages for conscious pain and suffering, medical expenses, and funeral and burial expenses. The adult sons sought damages for loss of society and companionship and for mental anguish.

The defendants admitted they owed a duty to the patient and that they breached the relevant standard of care, but they disputed any causal connection and they contested the amount of the plaintiff’s damages. The facility asserted that the patient’s death was caused by an independent act of God and was the natural result of pre-existing conditions that had caused her to be a three-year resident of the nursing home. The defense further highlighted the fact that the decedent’s daughter-in-law was in the room at the time of the fall, but did nothing to stop the single-person transfer. In fact, the defense asserted, the daughter-in-law may have moved the wheelchair from where it could have prevented the fall.

Defense experts opined that the deep intracranial bleed was unrelated to the incident. The autopsy of the brain confirmed a diagnosis of congophilic (amyloid) angiopathy. The expert neuropathologist testified that the woman’s condition caused blood to seep into her brain’s deep white matter that extended into the subarachnoid space, ultimately resulting in brain herniation and death.

The defense won a directed verdict on the fraud and penal code claims. However, the jury found the defendants liable for negligence, assessing 50% responsibility to the facility and 25% responsibility to each of the two individually named defendants — the administrator and nursing director. The jury also found malice and awarded the plaintiffs $856,000, including $500,000 in punitive damages to be split equally between the two sons. The jury declined to award funeral and burial expenses.

The punitive damages assessment was capped automatically based on the actual damage award, leaving a total verdict of $718,000. Thereafter, the defendants moved the court to review the punitive damages assessment as a matter of law. The trial judge granted the motion and reduced the award to $356,000.

What this means to you: It is no surprise that the defendants in this case admitted they had breached their duty to the resident by failing to provide a safe environment and by failing to effectively train the staff to ensure patient safety. Indeed, this case is a prime example of both individual and institutional breakdowns in providing health care to a woman who was dependent on her care providers.

From an individual standpoint, the nurse responsible for readmitting the patient upon her discharge from the hospital should have completed a full physical assessment of the patient.

"Because the patient was known to the facility, the nurse should have secured the previous medical record and compared the patient’s condition prior to her fall and hospitalization with her condition upon presenting for readmission," says Lynn Rosenblatt, CRRN, LHRM, risk manager at HealthSouth Sea Pines Rehabilitation Hospital in Melbourne, FL. "As a result, the nurse would have become aware that the patient’s needs were far more acute than what had existed previously. The nurse could have incorporated strategies to address the best and safest manner to handle the patient, provide for her comfort, and prevent — as much as possible — further deterioration."

The institutional errors in this case are evidenced by the three days that passed after the patient’s readmission before the staff was provided with inservice training and by the facility’s subsequent failure to insist on using the two-person transfer system.

"To assure that all staff were informed and trained on the specifics of caring for the woman, the nursing home should have developed a plan of care — a set of treatment protocols relating to toileting, positioning, skin management, nutritional support, personal hygiene, and transfer. In fact, the nursing home’s license conferred a legal responsibility to ensure that any nonlicensed staff member was fully aware of the patient’s changed circumstances and of the new plan of care that was being implemented," Rosenblatt says.

"The plan of care also should have indicated the various levels of assistance required throughout the facility, identified particular level of assistance required of each patient, and alerted all staff of the proper transfer techniques for each level of assistance. For example, the facility should have posted the level and type of transfer over the patient’s bed and made additional information readily available at the bedside, such as a daily staff instruction sheet clipped backwards on a clipboard so as not to violate the patient’s privacy while still ensuring consistency in patient care," states Rosenblatt. "In addition to specifically identifying the proper transfer techniques for each patient, the nursing home also could have required patients to wear colored armbands to identify their care levels while out of their rooms or off-unit. This type of system assures consistency and safety across all areas of the facility and all shifts.

"Further, a daily patient management log would provide the bedside staff with up-to-date changes in the patient’s individualized care plan. The nursing home’s staff can modify the sheet as needed, but the primary licensed nurse should review and initial the log frequently, if not daily, to assure that it is consistently updated and maintained," she notes.

The daily log also can serve as a cue sheet for families assisting with personal care, which occurs frequently in a long-term facility.

This case also demonstrates a growing segment of financial opportunity — the profitable outcome of nursing home litigation.

Consequently, Rosenblatt advises, nursing homes need to remember an old saying, "Know thy enemy." The quality of the resident’s life in this case was diminishing and, at 90 years of age, her life expectancy was short, a fact her sons were probably acutely aware of. The woman’s condition prior to her fall suggests that she was dependent, not capable of companionship or contribution to society, and her death within 24 hours of injury does not support the assertion that she suffered long-term pain or mental anguish.

Nevertheless, Rosenblatt notes, "an unfortunate accident allowed the adult sons to benefit financially, a situation which would not have occurred had they not been able to link their mother’s death with the circumstances of the fall. In fact, the actions of the daughter-in-law may validate the possibility that the family was aware of the benefits of an adverse occurrence. The patient’s sons were obviously educated and well informed, and they most likely had stringent ideas as to what was required to properly care for their mother. . . . Such individuals are naturally resistant to the possibility of a well-meaning error. To a family with a military background, any lack of adherence to policy is subject to discipline."

Because of the high sympathy factor surrounding the death of a dependent, elderly woman, this case may have had a less costly outcome had it not gone to a jury. "In fact, the nursing home could have encouraged settlement by adding the hospital as a co-defendant. If the nursing home had been able to sufficiently identify liability flowing from the hospital’s failure to assess the full extent of the patient’s injury when she was seen in the emergency room, settlement certainly would have been more likely," says Rosenblatt. "The addition of a co-defendant often makes the presentation of a case at trial more difficult for the plaintiff and eases the settlement value for the defendants."

However, the nursing home apparently decided that the patient’s age and medical condition were going to have a moderating effect on the jury, leading to its decision to proceed to trial.

"Obviously," concludes Rosenblatt, "it was a very bad roll of the dice."


• Bexas County (TX), Probate Court No. 2, Case No. 2001-PC-0706.