There was an interesting article in The Telegraph about the jury trial involving the wrongful death of Gerald Flannary. The case involved claims that personnel at Rosewood Care Center in Edwardsville failed to inform the patient’s doctor that he had developed a painful ulcer on his heel.
Attorney Robert Gregory told the jury in Madison County Circuit Court that his client is not claiming damages for causing the ulcer but for failing to report it to the doctor in a timely manner and lack of proper treatment.
Gregory is asking for damages for the added cost of treatment, the emotional effects on the family, the pain and suffering caused to the patient and loss of a normal life. The added cost of treatment is estimated at about $34,000. The loss of normal life means loss of what would be normal for a man living in a nursing home, Gregory pointed out.
He noted that Flannary could walk when he was admitted on Dec. 4, 2003, but did not walk after that. A deposition in the case showed that Flannary suffered from a number of medical problems, including Alzhemier’s disease.
A doctor, testifying in a deposition in the case, said the ulcer caused tissue damage down to the bone and would have been painful.
Gregory told the jury in closing arguments that Martha Flannary, Gerald Flannary’s wife, contacted the Illinois Department of Public Health about the case, and that agency issued a violation. Rosewood did not appeal but offered a plan of correction, he said.
He noted that nurses who testified in the case said they could not recall talking to IDPH.
Of course, the defense made the trial about the plaintiff’s lawyer, Flannery’s pre-exisitng conditions (which all nursing home residents have!), and the honor and compassion of nurses in general instead of the clear violation of the standard of care.
The nursing home’s lawyer provided by the insurance company argued that Gregory was honing in on a "small detail", when the "big picture" showed that the nurses and other staff members allegedly made a detailed record of Flannary’s overall condition.
"This case is supposed to be all about a lack of communication. Only a trial lawyer would say that 316 pages of medical records amounts to a lack of communication," McCubbin said. Of course, McCubbin is a trial lawyer too. Gregory took exception to McCubbin’s repeated reference to the plaintiff’s attorney as a "trial lawyer," as if to take advantage of some of the negative publicity trial lawyers have received. Gregory noted that his opponent also is a lawyer and was arguing a case in a trial. He wondered how McCubbin would describe himself. "I guess you would describe him as a corporate lawyer," Gregory said.
"His motive is money. He wants to gloss over the big picture," McCubbin said about Gregory. Of course, defense lawyers represent clients for money too. I never saw any defense lawyer take a case pro bono.
McCubbin also argued that staff members at Rosewood work 365 days a year caring for patients such as Flannary. He said they are dedicated to their work and to their patients. He said some of them testified that their patients "were like family members." Many nursing home employees are great, many are not.
McCubbin argued that Flannary had a history of ulcers and blisters before and after he was admitted to Rosewood. Those ulcers healed properly because the doctor was informed of them.
He called the investigation into the case "sloppy" because it missed some of the details available in the records. This is a typical defense tactic. When the investigation substantiates the abuse or neglect, they disparage the investigation. When the investigation supports the facility, the defense lawyers praise the investigatory abilities of the State regulators.