Articles Posted in Caregivers

A state court has found that the plaintiff’s claim that a home health caregiver and agency may be liable for the caregiver’s negligence in supervising a patient but it did not amount to a medical negligence case.

Tammy Upchurch was an employee of Right at Home; she was assigned to provide at-home caregiving services to Ida Stratz. During Upchurch’s shift, she fell asleep. While Upchurch was sleeping, Stratz wandered outside her residence. Several hours later, she was found lying face-down in the snow, unconscious.

Stratz was taken to a nearby hospital where she died. Stratz’s estate sued Upchurch and Right at Home, alleging liability for Stratz’s death.

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Dolores Trendell, 85, was admitted to Clare Oaks for rehabilitation following a fractured ankle.  She suffered from atrial fibrillation, which put her at risk for developing blood clots and suffering strokes and had been taking Coumadin as a blood thinner for years. Trendell was admitted to this nursing home facility on Feb. 23, 2011. Less than a month later, a nurse at Clare Oaks documents that Dr. Percival Bigol, the doctor responsible for managing her medication, spoke to the nurse by phone and ordered the Coumadin discontinued.

The nurse, Christina Martinez, did so and documented the change twice, but chose not to include it in the “physician orders” section of Trendell’s medical chart.

Dr. Bigol denied ever giving the order or being aware of the change at the time. Trendell ceased receiving Coumadin on March 16 and suffered a stroke two weeks later.

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Minnie Pearson was admitted to Carrington Place of St. Charles after she suffered a stroke. She was in her mid-70s at the time. About a month after her admission, nursing aide Heather Clark administered hydralazine to Pearson although it was another patient’s medication. She then became unresponsive and hypotensive.

The nursing home staff responded by attempting resuscitation and later called 911. However, Pearson died several months later. She was survived by four adult children.

The Pearson estate and family sued the nursing home, Heather Clark and her employer, Accountable Healthcare Staffing, alleging negligent administration of the hydralazine and choosing not to timely summon emergency medical assistance.

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Tho Nguyen, 43, suffered from a traumatic brain injury and quadriplegia. He lived in a private home and received services from a non-profit corporation that provided community-based care to persons with disabilities.

Nguyen’s sister, who was his guardian, learned that he suffered a bruise on his left side, allegedly coming from an incident in which a caregiver pulled him from his wheelchair and kicked him while he was lying on the ground. Nguyen’s sister, on his behalf, sued the community-based care center alleging negligent hiring, supervision and retention of the aide who, plaintiff asserted, was previously named in a domestic dispute.

The defendant denied the incident ever took place but still settled the case.

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Jovan Hinich was 28 years old and suffered from a neurological disorder that limited his mental capacity to that of a toddler. He lived at Next Step in Community Living facility, where his care plan required him to be supervised while eating and for his food to be cut into bite-sized pieces due to his tendency to eat quickly and swallow food without chewing it.

While he was traveling by van to his day program at the Milwaukee Center for Independence (MCFI), he was allowed to access his lunch, including a sandwich. After arriving at MCFI, Hinich collapsed from an obstructed airway. Part of the sandwich was later removed from his throat.

Hinich suffered cardiopulmonary arrest, which resulted in severe brain damage.  He now resides at a facility for those with brain injuries.

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Violet Moseson, a 97-year-old resident of an assisted living facility, was mandated to be checked on every morning. The facility was to perform safety checks each morning for this resident and others. At the time of this occurrence, the electronic system through which the facility was supposed to communicate with Moseson was not turned on in her apartment when she moved in.

A week later, Moseson fell in her apartment at night. It was alleged that she spent the next 2-3 days trying to get help. There was a trail of blood and excrement in her apartment when a family member found her lying on the floor. Because of the severity of the fall, Moseson suffered spinal fractures, contusions as well as progressive dementia. Moseson died several months later and is survived by her two adult sons.

The decedent’s estate and family brought a claim that was arbitrated against the assisted living facility. It was maintained that the facility chose not to check on Moseson every 24 hours and chose not to activate the call system in her apartment. The defendant facility disputed the length of time that Moseson had been left in the apartment after her fall and countered that she was at fault for failing to purchase an emergency pendant. Many elderly people wear a pendant around their necks for emergencies. The pendant has a call button that alerts a switch board that then contacts family members.

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Ms. Doe, 78, suffered from blindness and mild dementia. Her nursing home care plan called for her to receive assistance from at least two people during any type of physical transfer. This would mean transfer from her bed or transfer from a chair or a transfer from her wheelchair. Nonetheless, only one nursing home aide assisted Ms. Doe when transferring her to the toilet. Under these circumstances, Ms. Doe fell and fractured her left tibia and fibula. She died six days later as a result of her injuries. Ms. Doe was survived by her two adult sons.

Ms. Doe’s family sued the nursing home claiming it chose not provide adequate transfer assistance, which led to her fall and unfortunate passing. The defendant nursing home argued that Ms. Doe’s death resulted from her underlying medical conditions, not from her fall. Before trial, the case was settled for $325,000 confidentially.

The attorney representing the Doe family was Brett R. Leitner.

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Samuel Dale Graham was driving his SUV; his wife, Sharla Kay, and their two children were passengers. Another motorist, Alisa Prueitt, drove off the road, over-corrected and struck the Graham SUV, which rolled over.

Samuel, 37 at the time, suffered fatal blunt-force trauma injuries and died at the scene. At the time of his death, he was working full time for a hospital and part time for a private healthcare company.

Sharla Kay was 33 at the time and suffered spinal fractures at C-1, C-6 and T-3 as well as facial cuts. She missed several months of work and continues to suffer pain and limited range of motion in her neck and back. Her medical bills totaled $11,700.

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As the baby boom generation ages, the population of nursing homes is also expanding. Elderly Americans and Illinois residents who reside in nursing homes are likely the most vulnerable members of this aging society. Nursing home cases should not be confused with medical malpractice cases. A medical malpractice case typically concerns particular acts of negligence, such as a failed surgery or misdiagnosis. In contrast, nursing home cases do not involve a particular or discreet act of negligence. Rather, a nursing home abuse case in Illinois involves a pattern of sub-standard care, abuse or neglect.

For example, a nursing home abuse case may involve bedsores. Bedsores can be wounds of the flesh that take form over many days, weeks or even months. A nursing home resident who is dehydrated or suffers from malnutrition would not be the result of a single wrongful act.

Many nursing home cases arise from substandard care, abuse or neglect. Often nursing homes in Illinois operate without a single on-site treating physician; instead, they have only one who may make regular rounds. At the same time, most well-run nursing home facilities provide treatment by a resident physician, a nursing home administrator, a well-trained nursing staff, CNAs, physical and occupational therapists, speech pathologists, wound care doctors, dieticians and other medical and nursing providers.

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The Illinois Probate Act was recently amended to include a new section entitled, “Presumptively Void Transfers.” 755 ILCS 5/4(a) et seq. The effective date of the statute was Jan. 1, 2015. The intended purpose of the legislation was to prevent unrelated caregivers from taking advantage of elderly or disabled persons in their making testamentary gifts under duress or under less than forthright circumstances.

In essence, the new statute states that if a “transfer instrument” is challenged by a court proceeding, there is a rebuttable presumption that the transfer instrument is void if the transferee is a “caregiver” and the transfer exceeds $20,000. 755 ILCS 5/4(a)-10(a).

According to the statute, once the presumption is in place, it can be rebutted by the caregiver in two ways:

(1) The caregiver, beneficiary, proves by clear and convincing evidence that the transfer was not the product of fraud, duress or undue influence; or

(2) By showing that the beneficiary’s share under the transfer instrument is not greater than the beneficiary’s share already in the effect prior to becoming a caregiver. 755 ILCS 5/4(a)-1(15)(2) and 10(a).

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