Articles Posted in Nursing Home Residents

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Opal Moore, 92, suffered from dementia with agitation. After a hospital stay, she was admitted to the memory care unit at Superior Care Home for rehabilitation.

When she was admitted, her family instructed various nursing home personnel and its owner that she had aggressive behaviors, such as spitting and cursing. A care plan was established, which included a psychological consultation.

However, the consultation was not done and her aggressive behaviors increased. Several months after her admission, she spat on another resident in the dining room. A nurse then contacted her attorney-in-fact and requested that the family provide sitters.

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The plaintiff, Godfrey Healthcare and Rehabilitation Center, a nursing home, filed a complaint for services that was given to the defendant, John Toigo. At the time of the complaint, Toigo was a resident in this nursing home care facility. Through his son, Michael Toigo, he filed an answer and included affirmative defenses as to the nursing home’s lack of standing.

The court in Madison County, Ill., erred in entering a default judgment against Toigo on the nursing home’s oral motion for default. The court ruled that as the defendant was denied the opportunity to defend on the merits of his responsive pleadings and denied the opportunity to challenge the nursing home’s affidavit as to damages, the appellate court found that the trial court erred in denying Toigo’s pro se motion to vacate the default judgment.

Godfrey Healthcare served its motion to reconsider, a notice of hearing on Toigo’s former lawyer rather than on Toigo as required by the court order.

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Carolyn Cauffiel was 75 and had a history of pneumonia. She was admitted to the Heartland Rehabilitation and Care Center for a five-month period.

While she was there, she complained of breathing problems. An attending nursing home nurse came to assist her but did not auscultate her lung sounds. Auscultate is a Latin verb to listen to the internal sounds of the body, usually using a stethoscope. Auscultation is done for the purposes of examining the circulatory and respiratory systems (heart and breath sounds), as well as listening to the gastrointestinal system for sounds.

The nurse then told her colleague that Cauffiel’s lungs were clear and that she was “faking it” (breathing problems).

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June Newbauer, 70, lived at the Grace Living Center. She was dropped to the floor as she was being transferred into a shower chair. An x-ray showed no fracture, according to radiologist and defendant, Dr. James Zimmerman.

Another internist reviewed the same x-ray and also concluded there was no fracture.

The following month, Newbauer fell out of bed. Another internist who was called in to examine here did not order any imaging studies despite her leg pain. Four days later, she was correctly diagnosed as having a fractured left femur and knee.

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Edward Arnold was 70 when he was admitted to Whitestone Care Center for rehabilitation after a below-the-knee amputation of his left leg. After he went through dialysis, he was placed in a chair and left alone.

Arnold later fell, fracturing his right hip. The rehabilitation center’s staff then placed him back in his bed. Several days later, he was admitted to a hospital where he underwent hip surgery. Because of the hip fracture, he received additional rehabilitation, but he died months later of unrelated causes.

Arnold’s estate sued the nursing home, its corporate owners and managers, and other related corporate entities, alleging failure to adequately staff the nursing home, corporate negligence and joint venture liability. Continue reading

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Ralph Ford, 73, lived at St. Francis Nursing Center. He suffered from cognitive impairment and had a tendency to wander.

On one night, he left the nursing home unnoticed in his wheelchair. He was found early the next day in a Dumpster several blocks away; his limbs were frozen solid. He unfortunately died shortly thereafter. He was survived by two siblings.

Ford’s estate sued the nursing home alleging it negligently allowed him to leave the nursing home through an unlocked, broken and unarmed door and then delayed initiating a search for him for five hours after discovering that he was missing from his room.

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The Texas Supreme Court has held that a plaintiff satisfied the requirements of the state’s Medical Liability Act. The plaintiff offered multiple expert reports in a case alleging that an assisted living facility and other medical providers chose not to timely discover a resident’s missing dental bridge.

Betty Hathcock lived at Village of Lake Highlands, an assisted living facility. She reported the loss of her dental bridge to the facility’s staff members, who searched the facility but did not find it. It was later discovered the bridge was lodged in her trachea when an x-ray was done. She had developed respiratory symptoms that worsened over the course of an evening. Unfortunately, Hathcock died shortly after the discovery of the dental bridge.

Hathcock’s daughter sued the assisted living facility claiming failure to timely discover the missing bridge. To support the lawsuit, the Hathcock family filed four separate expert reports to satisfy the medical liability statute’s requirements, including one report discussing the medical cause of Hathcock’s death. The defendant moved to dismiss the case; the trial judge denied. The appellate court reversed the trial judge, and the case was taken up to the Texas Supreme Court for further consideration.

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The Iowa Supreme Court has held that the state owed no legal duty to a nursing home resident who was allegedly sexually assaulted by a convicted sex offender who had been transferred to the nursing home after leaving the state’s civil commitment unit for sex offenders.

Mercedes Gottschalk was a resident of the Pomeroy Care Center, a nursing home.  She was allegedly sexually assaulted by a violent sexual predator who was transferred from a state sex offender unit to this nursing home after receiving an Alzheimer’s disease diagnosis.

Gottschalk, and then later her estate, sued the nursing home alleging that it was reckless and negligent in the way the nursing facility cared for her. Pomeroy Care Center filed a cross-claim against the State of Iowa seeking relief. The state moved successfully for summary judgment.  An intermediate appellate court affirmed that decision.

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Cecil Gary, a 60-year-old resident of the McCracken Nursing and Rehabilitation Center, had a history of stroke and was also an amputee.  Although he had limitations in caring for himself, he was aware of his surroundings and generally enjoyed his life.

As a resident of this nursing home, he experienced eight different episodes of dehydration and later developed nausea and severe pain. In this particular incident, the nursing home staff left him in bed, in distress, for about 27 hours before calling paramedics to transfer him to a local hospital. When he was transferred, he was diagnosed as being severely dehydrated and in hypovolemic shock and acute kidney failure.

At the hospital, he received 27 liters of fluid before sending him back to the nursing home. Once he was back at McCracken Nursing and Rehabilitation, he fell, breaking his hip in three places. Gary was not a candidate for hip surgery given his medical condition.

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In this case, the Kentucky Supreme Court’s clear-statement rule was held to violate the Federal Arbitration Act by singling out arbitration agreements for disfavored treatment.

The Federal Arbitration Act (the Act) makes arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U.S.C. ¶ 2, establishes an equal-treatment principle:  A court may invalidate an arbitration agreement based on “generally applicable contract defenses,” but not on legal rules that “apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue,” AT&T Mobility, LLC v. Concepcion, 563 U.S. 333, 339.

The Act thus preempts any state rule that discriminates on its face against arbitration or that covertly accomplishes the same objective by disfavoring contracts that have the defining features of arbitration agreements.

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