A Florida widow must endure a second civil trial if she hopes to claim victory against a nursing home for the alleged neglect of her husband, which she claims led to painful pressure sores, a leg amputation and ultimately his wrongful death.
The Florida Supreme Court recently reviewed the appeal of Trans Health Management, Inc. v. Webb , overturning an earlier verdict in favor of the victim’s estate, primarily on the grounds that the trial court had wrongly denied the nursing home chain a proper defense.
Miami wrongful death attorneys recognize that this case, along with recent legislation that restricts the defendant list in nursing home negligence claims, may make it more difficult to pursue claims against long-term care facilities.
Here, the plaintiff’s widow alleges that the nursing home staff’s action and/or inaction while he was a patient at a Gainesville facility between 2001 and 2005, caused him to suffer severe bed sores that resulted in major infections and required several surgeries, including a below-the-knee amputation of his right leg.
The defendant is a chain with 220 nursing home facilities operating nationwide. The $900 million verdict a jury handed down in 2012 was one of three secured against this same firm that topped $100 million. The judgment was believed to be the largest ever against a nursing home company.
Although the facts of the case remain in dispute pending a second trial, what is alleged to have happened to the plaintiff is entirely preventable. Had the nursing home provided the proper resources , training and policies and had staffers follow protocol, the patient’s injuries could almost certainly have been avoided.
Bed sores are common in nursing home facilities when caregivers are not aggressive in preventing them – and most medical professionals agree: They are easier to prevent than to treat.
The U.S. Centers for Disease Control and Prevention reported in the 2009 National Nursing Home Survey that approximately 11 percent of residents in nursing homes suffered from pressure ulcers (also known as bed sores). Most of those were Stage 2.
Caused by unrelieved pressure on the skin, these sores typically develop over bony patches of skin, such as the shoulder, back, elbow, hip, heel and back of the head. They constitute a serious medical condition. Because the condition is preventable, when care centers report patients suffering, it’s considered a marker of poor clinical care.
Because more than one in 10 nursing home residents report having had a pressure ulcer (likely a low estimate), it’s an issue that must be addressed.
The key to prevention is repositioning. In order to avoid stress on the skin, caregivers need to make sure that patients are being moved. For patients who are bedridden, medical professionals suggest using specialized mattresses to help protect prone areas. Another prevention method is to ensure that the head is elevated at no more than 30 degrees above the rest of the body, which can help to prevent shearing. Cushions can also be applied to help protect bonier areas.
Patients who have displayed rapid weight loss may be at particular risk.
At-risk patients should have their skin cleaned and inspected daily. Incontinence should be appropriately managed in order to ensure the skin stays clean and dry. Frequently-scheduled assistance with urination, regular diaper changes and the appropriate use of urinary catheters may help.
Of course, all of this assumes that facilities are appropriately-staffed. Aides and nurses who are assigned too many patients will not be able to keep up with basic duties, no matter how hard-working or well-intentioned.
The positive relationship between nurse staffing levels and the quality of nursing home care has been well-documented.
However, Florida legislators have slowly whittled down those requirements. Prior to 2010, nursing home patients were supposed to be guaranteed 2.9 hours of daily care by a certified nursing assistant, and another 1 hour by a licensed nurse. The national average is 3.6 hours.
Then four years ago, lawmakers passed a bill that stated the daily hours-of-care requirement would remain the same, but registered nurses would not be required for much of the care.
There have also been numerous instances throughout the years wherein nursing homes were given leeway on staffing ratios in response to budget crunches.
Staffing levels always have an impact on patient care.
The Webb case was filed four years before the start of that new legislation. Like many facilities now operating in Florida, the defendant here was a for-profit nursing home facility with headquarters located out-of-state.
Initially, the plaintiff filed a claim for abuse, neglect and exploitation of a vulnerable adult. While the trial court allowed the claim to proceed, it dismissed a request to pursue punitive damages.
Then in 2009, an out-of-state court appointed a receivership over the defendant’s assets and related entities. The defendant’s parent company had previously sold its interest, but was still handling defense for the company in numerous pending civil litigation actions. The out-of-state court set a claims bar date by which all creditors were supposed to file a notice of claim. Webb did not file a notice by that deadline, and the receiver found there was no longer a need to defend against the lawsuit.
But the case was still pending in Florida, where a new judge was appointed. Subsequently, the plaintiff amended the complaint to reassert the original claims, and again requested permission to pursue punitive damages. The defendants never answered the complaint (having discharged legal counsel), and so the trial court issued a default judgment on all three claims. A trial was then held to determine the amount of both the compensatory and punitive damages.
But on the morning of the trial, an attorney for the defendant appeared in court, requesting:
• That the default judgments be vacated;
• That the trial be continued;
• That the trial court allow an out-of-state attorney to represent the defendant, even though she was not licensed to practice in Florida.
The judge denied these requests, saying that to file so late was “frankly unacceptable.” However, no legal basis for that determination was offered. After a three-day trial, during which defense counsel was not present, the jury returned a $900 million verdict in favor of the plaintiff.
Upon review, the Florida Supreme Court ruled the proceedings improper, finding the judge was incorrect in refusing to grant the defense attorney pro hac vice admission to appear on behalf of her client, considering she was in good standing in her own jurisdiction.
This error, the court found, requires a reversal of the entire judgment.
If you have been the victim of Florida nursing home neglect or abuse, contact the Law Offices of Jose M. Francisco.
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