August 17, 2009

WOMEN'S DEATH COSTS NURSING HOME $1.4M

Estate of Margaret Miller v. Darien Health Care Center: A Bridgeport jury awarded the estate of an 80-year-old Norwalk child care worker nearly $1.5 million for her death following a fall at a Darien convalescent home in 2004.

Margaret Miller’s decline began when she cracked three ribs in a minor fender-bender accident. Afterwards, she had decreased appetite and difficulty breathing. She was evaluated at Norwalk Hospital, said attorney Eric Smith, who represented Miller’s estate in a wrongful death action. The hospital recommended a short-term stay at a rehabilitation center so she could re-gain weight and strength.

Miller was admitted to the Darien Health Care Center. Just five hours after being admitted, she rang for assistance to go to the bathroom. When no one came, Smith said, she attempted to get out of bed by herself and fell, breaking her shoulder and hip. Emergency surgery on the hip at Norwalk Hospital took a heavy toll on her remaining strength, and the extremely thin woman died while in intensive care.

The health center ceased operations the following year, Smith said, and assembling records and locating witnesses was a challenge. To prove liability, the estate had to show that the convalescent home was negligent in the steps it took to protect Miller from falls.

“Part of the challenge was getting records, and part was getting the people who were working there at the time,” Smith said. “We were trying to prove they had a new patient, didn’t know anything about her, and other than [her being] seen by an occupational therapist and a physical therapist, the records suggested to us that she was given no routine nursing care.”

An important witness was the nursing supervisor, in charge of all new patient admissions that night. “Her testimony of what happened didn’t seem to align with what was contained in the nursing records,” said Smith. “We also got the impression, as did our expert, that some of the medical records were created after the fall took place, but were made to appear that they were created before the fall took place.”

For example, after Miller fell and broke her shoulder and hip, she was placed in a new bed. The nursing home witnesses said this was done to provide her with a bed with rails. Smith suggested to the jury that the reason for the bed change was because her original bed may have lacked a bed alarm – a pressure-sensitive pad that is used to alert the nursing station of a patient attempting to get out of bed.
The convalescent facility witnesses also testified that Miller was properly evaluated upon her arrival at the nursing home, and that a written “Fall Risk Assessment” was prepared.

The assessment said that Miller was a low fall risk. But, said Smith, his expert said that “it appeared to be created after she fell. Like someone went back later that night and recreated the assessment to fit the circumstances.”

Liability Defense Halloran & Sage defense lawyer Richard C. Tynan represented the health care center. As an affirmative defense, the convalescent home said it carefully warned Miller not to leave the bed without assistance. That may have been the basis for the jury’s puzzling decision to reduce its verdict by 5.9 percent for Miller’s comparative fault. To Tynan, that number seems odd. “I’d understand five per cent or ten per cent – but 5.9 per cent?”

The jury deliberated only about 2.5 hours, and gave the estate $1.5 million for pain, suffering and loss of life. It also awarded $38,425 for medical expenses and $5,865 for funeral expenses. The 5.9 per cent reduction for Miller’s comparative negligence reduced the award to $1,453,177.31.

Tynan, a courtroom veteran, said he was astonished by the size of the award. He had called the head of geriatrics at Bridgeport Hospital to testify about Miller’s expected lifespan. Dr. Beata Skudlarska testified that, factoring in Miller’s auto accident injuries, her weight of 63.9 pounds (which was half her normal weight) and her respiratory problems, she had a likely life expectancy of only six to 12 months even before her fall.

“The record described her as anorexic, cachectic (extremely thin), paranoid, depressed and possibly suffering from a neoplastic (cancerous) condition,” said Tynan.

Skuldarska testified that Miller had an enlarged heart, congestive heart failure and a very low “ejection fraction,” which is the measure of the heart’s pumping function.
On the plaintiff’s side, Smith called no expert on life expectancy at all. He relied exclusively on the actuarial tables for a woman Miller’s age. By that measure, she had more than nine years to live. Even if her life expectancy was greatly limited, he contended that only made her remaining time on earth that much more valuable.
Tynan is in the process of filing a slew of post-verdict motions – for the verdict to be set aside for being against the weight of evidence; for a reduction in the amount; for a new trial.

“I’m sure Margaret Miller was a very nice lady. She had a very nice family. But I think the verdict was off the charts given her status of health at the time of her entry into the convalescent home,” said Tynan.

The award was so unexpectedly large, even personnel at the clerk’s office had difficulty focusing on the figures. A clerk, Tynan said, told another defense lawyer in the case that that “when he read the verdict, he first thought it was $15,000. Then when he read it again he thought it was $150,000. When he read it a third time he was just trying to figure out where that decimal point was!”.