Mistaken eye donation costs hospice $700,000
Mistaken eye donation costs hospice $700,000
Jury agrees to 'send a message'
A Georgia jury has slapped a $700,000 judgment on the former owners of Peachtree Hospice in Atlanta over a 1993 incident in which a deceased hospice patient's eyes were harvested by the local eye bank without the family's authorization. Although the facts of the incident are murky - and were not clarified by the runaway jury verdict - the case is a cautionary tale for hospice.
The hospice's owners "need to learn a lesson from it. Send the message that they have to pay for their wrongs," Bill Lester, attorney for the plaintiff, widow Shelley McCown, told the jury. Since the hospice did not profit by the mistaken eye harvesting, this "message" - including $300,000 in punitive damages - should give pause to other hospice managers.
The incident occurred in 1993 on a hospice inpatient unit operated by Peachtree Hospice, on a wing leased from Dekalb Medical Center in Decatur, GA. The owners of the hospice, Alternative Healthcare Systems, subsequently sold Peachtree to Beverly Enterprises, but retained liability for this incident.
The Georgia Eye Bank, which harvested the eyes, settled out of court earlier with McCown. Although eye bank procedures nationwide have come under scrutiny recently, Mary Ann Cochran, a spokeswoman for the Georgia Eye Bank, says, "I can tell you that we did follow our policies in this case."
Mrs. McCown's suit charged negligence, mutilation, failure to train and supervise nursing personnel, and failure to provide medical records. She testified that she received no explanation or apology for the mistake, reports the Atlanta Journal-Constitution.
According to court testimony, a nurse on the hospice unit noted on the appropriate charting form that Mrs. McCown had said "no" to the donation of her husband's eyes. Another nurse later added a notation that a verbal authorization had been given and the director of nursing then signed off on that form. The latter two nurses were also named in McCown's lawsuit and were found personally liable for a share of the compensatory damages.
The hospice management company, which currently operates hospice programs in Louisiana, Massachusetts, New Jersey, and Texas, plans to appeal the judgment, but first will ask Judge Clarence Seeliger to overturn it. The company's attorney on this case, Ed Kellogg, says he believes that serious legal mistakes were made by the judge, including preventing the jury from having information they needed and asked for.
Ed Morgan, CEO and co-owner of Alternative Healthcare Systems, tells Hospice Management Advisor, "We honestly feel this judgment will be overturned on appeal. The only thing the hospice did wrong was we had one nurse change a form after the fact," he says. "We had a chaplain who spent hours talking with Mrs. McCown the night before her husband died, discussing the donation, but the judge would not allow our chaplain to testify, citing the sanctity of the priest-penitent relationship."
"Juries historically have been receptive to arguments that people who are in the immediate throes of bereavement are vulnerable and especially in need of protection," Kellogg explains. "That has led to verdicts over the years against people dealing with them in a manner that was perceived as 'cruel, callous, and indifferent.' In this case, the plaintiff's attorney continually harped on the fact that there was a change on the medical records, which appeared to be covering up a mistake," Kellogg relates. "`Depraved' was the word plaintiff's attorney used. He said that hospice staff was depraved in its treatment of Ms. McCown."
Lester also insisted in court that when his client called the hospice, she got a runaround, Kellogg relates. "At this remove, four or five years after the event, who knows what happened. When her attorney called, asking for money, they clammed up."
Lester, with the Atlanta law firm Silfen, Segal, Fryer & Shuster, tells HMA that the "message" the jury sent to this hospice was "to get its act together and respect instructions" from patients and families, and don't go changing medical forms after the fact. "The attitude of the hospice - its employees, its attorneys - pissed the jury off. They came across as arrogant, indifferent, and obnoxious," Lester says. "It was not an indictment of hospice as an industry."
But the message for other hospices, he adds, is to "be careful. Make sure you have proper procedures. Make sure no one goes back and changes forms. If you are uncertain about permission, go back to the family and clarify it. If they get involved in organ donations, they'd better know what they're doing - or not get involved!"
This case has serious implications for hospice managers, starting with what they do as supervisors and what the supervisor's role is, notes Judy Brunger, director of Hospice Savannah and president of the Georgia Hospice Organization. Organ donations are rare in hospice, Brunger says, but they need to be handled with clear and explicit policies.
"It yet again points up the fact that hospice is no longer invulnerable" to lawsuits, complaints, or other scrutiny, she adds. "It also raises awareness of risk management issues of any kind. You need to look at all sorts of things that go on in your agency - including education, policies, all of these processes. It behooves all of us to look at these issues," Brunger says, because human error can occur in many different ways.
E. Richard Crebs, president of the National Hospice Organization Insurance Agency (NHOIA), reports that Alternative Healthcare was not insured by NHOIA at the time of the eye incident, although it has carried NHOIA insurance at other times. "The whole thing should never have happened. It was booted from beginning to end," Crebs asserts.
"The case also brings up an issue that has changed my standard risk-management advice to the industry. I've always said it was not necessary for hospice professionals to carry individual liability insurance, because they were included in the agency's policy. Now I'm changing my advice," Crebs adds. He now suggests that professionals obtain individual medical/professional liability coverage, which should be available from their professional associations.
Morgan acknowledges that his company made mistakes in how it handled the lawsuit, although not the ones claimed by McCown's attorney. He agrees that the nurses should never have changed the form and that a different legal strategy might have been wise.
"I took a stand in this case and said I'm not going to pay blood money, because the hospice did nothing wrong. But it almost made my company bankrupt," he says, adding that he was required to post a $600,000 cash bond pending appeal. "Perhaps I should have settled with her attorney. At this point it's easy to say, 'Yeah, sure,'" he sighs. "As CEO, I'm responsible, and if I had paid more attention to this case from the beginning, it might never have reached this point."
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