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Lessons Learned: 5 Takeaways From Major Nursing Home Neglect Lawsuits

What does negligence look like in a nursing home or assisted living facility? It can be hard to tell the difference between the natural stages of aging, in which some physical and mental deteriorationman who is sad about poor care is to be expected, and the effects of irresponsible care. We hope that the following examples of alleged neglect, gleaned from elder care lawsuits and investigative reports, will serve as some example.

While their circumstances are impossibly tragic, the cases of Doris Cote and Joan Boice should be a wake-up call to every family with a loved one in a long-term care facility. From the outset, it's particularly crucial to note that in both cases, family members began to suspect something was wrong well before their loved ones paid the ultimate price of nursing home neglect. For Joan Boice's daughter-in-law Karen, it was just a feeling at first; something was "weird," she would later tell reporters.

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CA Assisted Living Facility Lets Bed Sores Progress

Joan Boice moved into Emerald Hills, an assisted living facility in Northern California, on September 12, 2008. Assigned to the facility's Memory Care Unit, according to ProPublica, Boice received a cursory examination from a nurse, Peggy Stevenson, who even noted that Boice should be monitored closely to prevent a fall. But Stevenson, who today says she remembers neither Boice nor her own time working at Emerald Hills, didn't work up any sort of plan to actually care for the resident.

It shouldn't be surprising, then, that Boice fell only 10 days later, in the television lounge. When emergency responders arrived, Boice was splayed face-down on the floor, bruises beginning to develop on her face. It was the night Boice's son, Eric, and his wife, Kathleen, had planned to hold a birthday party for their daughter.

State Regulations Disregarded, Boice Family Claims

Not one employee at the facility, however, could tell the ambulance crew how Boice had fallen, or for how long she'd been lying on the floor. Nor did any employees accompany Boice to the hospital. They also delayed notifying her husband, Myron, who also lived at Emerald Hills.

Boice recovered, to a degree, although she couldn't walk, feed herself or speak clearly, according to Jenny Hitt, who worked as a medication technician at the assisted living facility. But Emerald Hills was woefully understaffed, report ProPublica's A.C. Thompson and Jonathan Jones, and couldn't hope to care for Boice, or any patients, adequately. Alicia Parga, another nurse, oversaw the memory care unit in which Boice lived, intended for residents with dementia and Alzheimer's. It took Emeritus around 18 months to give Parga any training on either condition, even though only 6 hours of training were required by state law.

Lack Of Communication, Adequate Staff, Led To Death

Nineteen days after entering Emerald Hills, Joan Boice developed a pressure sore on her foot. In her medical records, an employee noted the severity of her condition, writing that a "skilled professional" would attend to Boice's wound.

But no one from the assisted living facility contacted Boice's doctor. In fact, they didn't contact a doctor at all. Nurses were in short supply; time sheets obtained by ProPublica suggest that Emerald Hills left Boice's memory care unit unattended at least five nights during her stay. It was only two weeks after a nurse had first noticed the festering wound on Boice's foot that her physician was finally called. The doctor sent back a short memo, advising the facility to bring Boice in for X-rays. Three weeks later, Emerald Hills notified Boice's family of the sore.

Eric, Joan Boice's son, would ultimately become the person who took her to the doctor. Tayyiba Awan, Boice's physician, inspected her sore, which seemed to be healing - an ulcerated bunion, the doctor thought. But had Boice been left to lie on her side for extended periods of time? It was possible, Awan said.

Back at Emerald Hills, Boice's condition was quickly deteriorating. Bed sores were multiplying across her body, and the assisted living facility's employees were scrambling to "improvise" a solution, according to ProPublica. Under California law, assisted living facilities aren't allowed to keep residents with serious bed sores, which require expert medical care. But Emerald Hills did, Boice's family claims, and the facility has a history of doing so, receiving multiple citations from state inspectors over the years.

"We Knew We Weren't Supposed To Do It"

Executives from Emerald Hills deny that any improper medical care occurred in Boice's case. But speaking to Jenny Hitt, a worker who spent time at Emerald Hills while Boice lived there, ProPublica heard a very different story. Hitt says that she and her coworkers tried desperately to deal with Boice's pressure sores:

"We knew we weren't supposed to do it. We knew we weren't licensed or medically trained to do it."

Hitt, who has no medical training, had been put in charge of doling out medications at Emerald Hills. Boice's bed sores turned from bad to worse, deepening and turning black as her skin died. But even then, Emerald Hills didn't inform her family members of the condition, they say.

In December, only two months after Boice was admitted to the assisted living facility, Peggy Stevenson, the nurse who had first examined her, e-mailed Boice's daughter-in-law. Boice's condition, Stevenson wrote, required transfer to a nursing home, a facility with the qualified medical staff necessary to treat her. Kathleen, ProPublica writes, "was stunned." It was "the very first time [Boice's family] had ever heard anything like that."

After her transfer, Boice was inspected by a nurse at the nursing home, who found at least eight sores, in various states of decay, on her body. Kathleen sat through the inspection, horrified. Two months later, on Valentine's Day, 2009, Boice died. Her death certificate, the Sacramento Bee found, listed bed sores as a "substantial factor in her death."

Family Heads To Court, Hoping "To Share Mom's Story"

More troubling facts would come out in the course of the lawsuit eventually filed by Boice's family. While California state law requires that assisted living facilities conduct a "pre-admission appraisal" of residential applicants, in order to identify potential health concerns, Emerald Hills had never performed one for Boice.

In fact, a state investigator found in 2008 that the assisted living facility had been admitting residents illegally, without the doctor's evaluations required prior to move-in. Assisted living facilities, Thompson and Jones write, have a "powerful business incentive to boost occupancy rates and to take in sicker residents, who can be charged more."

Emeritus offered the Boice family a settlement, $3 million, but the terms of that settlement, Eric Boice says, were unacceptable. With a trial date quickly approaching, Emeritus wanted the family to return every internal document obtained by their attorneys. Deposition records would be kept under seal forever. And Emeritus would accept no wrongdoing, or liability in the death of Joan Boice. The family rejected Emeritus' offer because, as Eric later said, "we would not have been able to share my mom's story."

The Boice family would spend the next two months in a California courtroom. Two, long difficult months at the end of which a jury awarded the estate of Joan Boice $3.875 million in damages, an award quickly cut to $250,000 by California's "cap" on pain and suffering damages, and $22.9 million in punitive damages.

On Appeal, Judge Adds Over $4 Million To Verdict

But in a turn of events common after such large jury verdicts, Emeritus appealed the case to the Sacramento County Superior Court. Karen Lucas, an Emeritus spokesperson, said "we believe that the verdict was tainted by the admission of improper testimony and evidence and does not reflect the care that we provided Ms. Join Boice." The company's attorneys argued that $23 million was far out of line with the punitive damages normally awarded in such cases, and requested a reduction or retrial.

Not only did Judge Judy Holzer Hersher disagree with Emeritus' arguments, she tacked on another $4.3 million to cover the legal and court fees accumulated by Boice's family during the appeal. In Emeritus' actions, Judge Hersher saw a "high degree of reprehensibility."

Emeritus has since changed hands. The company's assets, including Emerald Hills, were acquired by Brookdale Senior Living Solutions in 2014.

Vital Care Plans "Ignored" In Arizona

In 2015, an Arizona jury awarded the Estate of Doris Cote $19.2 million, handing down the whopping decision against Five Star Quality Care, Inc., a national chain of skilled nursing facilities based out of Newton, Massachusetts. Before trial, Five Star Quality Care had offered Cole's estate a settlement of $500,000.

Five Star, a public company valued at $200 million according to Courtroom Connect, operated the nursing facility in Peoria, Arizona where Cote, 86 at the time of her death, was sent to recover from an infected shoulder.

While Cote did not die in The Forum at Desert Harbor, her estate's attorneys argued that the nursing home's "willful disregard" of safety procedures had contributed significantly to her passing. During her stay at The Forum, Cote was over-medicated with potent painkillers, fell multiple times, suffered severe malnourishment and ultimately developed a pressure sore that became infected with MRSA, or methicillin-resistant Staphylococcus aureus, her family claimed.

Employees of The Forum, Cote's attorneys argued at trial, chose to ignore procedures put in place to minimize the development of bed sores. In fact, a 2011 inspection conducted by federal investigators had previously found evidence that The Forum's pressure sore management policies were woefully inadequate.

In "six of seven sample residents," randomly chosen, "the facility failed to initiate care and provide services to prevent pressure ulcers and promote healing," according to a report filed in conjunction with the inspection. The facility knew about the problem but did nothing, the estate's lawyers argued, promising to implement immediate improvements in an attempt to "get the government surveyors off their back." Those improvements never came, Cote's family members claimed, and their loved one paid the price.

In order to check that nursing homes are in compliance with federal regulations, the Centers for Medicare and Medicaid Services (CMS) will have a state employee conduct an unannounced survey of the facility, noting any deficiencies in the environment, staffing or quality of care in an official report.

In the event of a lawsuit, these surveys can become crucial evidence. How? Being cited for a elderly man in a nursing homeviolation is a formal warning. The nursing home is now aware of a serious problem, one that only threatens the facility's continued certification, but could mean higher penalties down the road, including punitive damages in a nursing home neglect lawsuit.

After receiving a citation, the nursing home should do everything in its power to fix the problem. In fact, experts suggest that nursing homes should reevaluate their internal policies, and make improvements as necessary, to prevent future injuries. But if a facility makes no effort to improve the living conditions of its residents, and another patient gets hurt as a result, that can mean increased liability in a personal injury case.

Just as troubling, The Forum attempted to conceal Cote's degenerating condition, attorneys said, lying on forms required by Medicare and Medicaid about Cote's weight loss. The jury agreed and found the defense's argument that Cote's decline in health was caused by common, unavoidable consequences of the aging process, rather than negligence, unconvincing. While the jury ultimately said The Forum was not responsible for Cote's death, the nursing home was responsible for her pain and suffering. Her estate was awarded $2.5 million in compensatory damages and $16.7 million in punitive damages.

The case was Estate of Doris L. Cote, et al. v. Five Star Quality Care Inc., et al., case number CV2012-094285, filed in the Maricopa County Superior Court.

5 Lessons Learned

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Laurence P. Banville
Date Published: February 17, 2017
Laurence P. Banville is the managing partner of Banville Law. As an experienced personal injury attorney, Mr. Banville helps clients recover compensation from those responsible for his clients' injuries. Our firm is located in New York City, serving clients from the five boroughs: Manhattan, Brooklyn, Queens, The Bronx, and Staten Island.
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