A federal jury has ordered Ron Lusk (who owned the the Quail Creek Nursing and Rehabilitation Center facility when horrific abuse occurred but attempted to evade responsibility by selling the nursing homes while litigation was pending) to compensate the family through the money who siphoned away from the facility.  It’s the latest legal battle surrounding a disturbing video showing two nurse’s aides abusing a 96-year-old woman.

The video is still hard to watch for the Mayberry daughters, which shows their 96-year-old mother, Eryetha Mayberry, being abused by nurse’s aides. One aide is seen stuffing a latex glove into Mayberry’s mouth, and the other aide thumps her on the head.

Two families had to go back to court after Lusk refused to pay them after the first round of lawsuits.  Lusk sold the nursing home while the lawsuits were pending, and spent millions on a home and a yacht.  “He took the money, almost $4 million, out of Oklahoma back to Texas, spent it on his mansion, spent it on his yacht, spent it frivolously in all kinds of ways and said he was not personally responsible,” Wes Bledsoe, with A Perfect Cause, said.

 

 

A similar tragedy happened to another Oklahoma family at Lusk’s nursing home. Tim Kingsbury’s mother, who was on a special diet, choked to death eating sausages while in the nursing home’s care.

Several pieces were pulled out of her throat,  and there’s no way someone would not know that was happening. Somebody was mad at my mother, and they were just killing her,” Kingsbury said.

A jury awarded Tim Kingsbury’s family nearly $350,000.  He’s never seen a dime, just like the Mayberrys.  The two families didn’t give up.  They filed a fraudulent transfer action, claiming some of that money should have gone to them.

A federal jury just decided in their favor again and ordered Lusk to pay almost $1.6 million for fraudulently transferring money from his nursing home’s bank accounts to avoid paying two court judgments.   Lusk must use his personal funds to pay the judgments.   Court documents show Lusk sold the nursing home in June 2012, receiving $2.85 million in net proceeds and another $1.14 million from accounts receivable or reimbursements.

 

 Beachwood Pointe Care Center nursing home and its parent company, Provider Services, will pay $1 million to the family of a resident who died due to the facility’s “negligence and recklessness,” including infected pressure ulcers, a judge ruled. A jury in Cuyahoga County Common Pleas Court awarded Stevens’ estate $560,000 in punitive damages and $440,000 in compensatory damages.

Mary Stevens, a 71-year-old resident, died in 2012 following injuries caused by staff negligence, according to a lawsuit filed by her estate. Stevens also suffered from infected pressure wounds, and sustained “severe” and “fatal” injuries while living at Beachwood Pointe, the lawsuit claims.

According to the lawsuit, the Stevens’ family and physician were never notified of her injuries, and she was “not provided with a safe environment” prior to her death.

 

An Oakland County jury in Detroit held an assisted-living facility liable for the death of a 90-year-old dementia-stricken resident after she swallowed dishwasher detergent left in an unsecured cabinet. The family of Willie Mae Henderson was awarded $5,080,000 — $3 million of which was for conscious pain and suffering in its lawsuit against Watermark Retirement Communities. An Oakland County Circuit Court jury deliberated for less than three hours following a seven-day trial before delivering the verdict, awarding the exact amount that the family’s attorney’s requested.

Lawrence J. Buckfire, co-counsel for the estate, said he was pleased that the jury determined the decedent’s age was not a factor in awarding her estate.  “One of the things you’re always concerned about when doing a case for an elderly resident is somehow the jury is going to discount the value of that person’s life or the loss of that person’s life based upon their age,” said Buckfire.

Willie May Henderson wandered into the kitchen area at The Fountains at Franklin in Southfield. One of the two caregivers on duty was on a break, leaving the other to watch over 17 residents by herself. Based on timesheets, the caregiver stayed out 56 minutes instead of the allotted 30 minutes. A substitute supervisor was not brought in.  Watermark Retirement Communities denied negligence and denied causing significant pain, suffering, fright, shock and disability to Henderson. They also denied an allegation that The Fountains at Franklin, the facility where the incident occurred, was not property staffed or supervised.

Buckfire said the cabinet doors beneath the kitchen sink had easy access, with a magnetic lock on one side and a makeshift wood-stick mechanism designed by the maintenance staff on the other. Unsupervised, Henderson opened the cabinet, opened the bottle of detergent and ingested it.

After being found with her head leaned back and her lips swollen, Henderson was rushed to the hospital. The injuries to her mouth, throat, esophagus and stomach were so severe that she could not undergo surgery and was unable eat or drink. She died 13 days later.

Buckfire said the defense did not admit liability, argued that it took reasonable measures, and asserted that no other residents had gotten into locked cabinets before.

“These facilities usually are very poor at documenting treatment and important events,” he said. “Sometimes that poor documenting hurts them, obviously, because they can’t verify what they did or didn’t do, but it can make it more difficult for us to prove negligence on their part because the documentation is so poor.”

Buckfire said the facility’s lack of written procedures for securing hazardous chemicals made an impression on the jury. And despite the facility’s claim that locks and doors were regularly checked, there were no inspection records, he added.

“The lack of that documentation really hurt the defendant; there was no way they could establish that they did all the things they argued that they did,” Buckfire said.

The facility’s administrator claimed there was a safety policy, he said, but the facility’s national risk manager conceded at trial that there wasn’t one.

In addition, Buckfire said he pointed out inconsistent statements among employees about the cabinet’s condition and how the incident occurred because of it.

“A top right hinge from the cabinet was loose, so they immediately determined that somehow my client, a 90-year-old lady in a wheelchair with dementia, forcibly pried it off with her fingers because there were no tools or utensils in the area,” he said.

Buckfire said that before trial, the defendant asserted that Henderson might not necessarily have been the one damaging the door, “but there was nobody else. It was a locked unit and no one saw any outsiders or anyone else do it.”

To prove that, Buckfire said he used three experts.

Dr. Ljubisa J. Dragovic, a forensic pathologist, testified that if Henderson would have done what the defense asserted, her fingers or fingernails would have had abrasions. The records showed none, Buckfire said.

Harold Josephs, an engineer, inspected the door and hinges and screws. He testified it was highly unlikely that anyone, especially the decedent, could have forced the hinges off the cabinet, and the probable scenario was the doors were not locked or secured.

Michael Brodie, an assisted living expert, testified that a proper caregiver/resident supervision ratio of 2-to-17 was not used during the time of the incident. Brodie also said that fatal-if-swallowed chemicals must be secured so that vulnerable residents cannot gain access.

“[Y]ou must have appropriate locking mechanisms and secondary prevention measures,” Buckfire said. “And at the very least, have a childproof cap on [the detergent]. Here, the container was actually open, making it easier for [Henderson] to consume it.”

“The son in this case visited his mom five to six times a week, and with a life expectancy of two to three years, you’re looking at hundreds of missed visits,” Buckfire said. “And the jury understood how close and devoted he was to his mother, and they had no problem determining his loss was the same as if it were a younger person.”

The jury awarded $2 million for loss of society and companionship.

In arguing damages for conscious pain and suffering, Buckfire said he relied on nursing records taken during Henderson’s 13 days in the hospital. He explained that nursing assessments were performed every four hours, which included pain-scale assessments.

“So rather than have me explain and have [the jury] believe me, I did a summary of the pain-scale assessments,” Buckfire said. “These showed that even after she received morphine or other pain medications, quite often her pain levels were at 8-out-of-10 or 6-out-of-10 and so forth.”

He said that while the defense acknowledged that Henderson’s death was terrible, the defendant tried to minimize the damages by saying a lot of times she was on pain medication or a ventilator and wasn’t conscious.

“So I used the actual nursing notes and objective data to show she did suffer every single day for the remainder of her life,” Buckfire said.

He said he felt confident in asking for $3 million for the resident’s full 13 days of suffering after a pre-trial focus group said it would be comfortable awarding that much.

“My argument to the jury and to the focus group was, this woman suffered the same way a 30-year-old, 50-year-old or 70-year-old would,” he said. “Don’t discount the amount of suffering she went through based on her age.”

In addition, the jury awarded $80,000 for medical and funeral expenses.  “Families put a great deal of trust in these facilities. It is a very difficult and emotional decision for a family to make,” he said.

KTNV reported the settlement between Nevada and the family of Dr. Bob Robinson, a former state lawmaker.  Nevada officials are paying $400,000 to the family of an Alzheimer’s patient who died after being allowed to exit Nevada State Veterans Home nursing home in sweltering heat.  Robinson was unsupervised when he maneuvered his wheelchair onto an outdoor patio at the Nevada State Veterans Home on July 15, 2013 and got stuck. Staff later found him with third degree burns and heat stroke, and he died two weeks later at age 89.

The family sued, saying the state was deliberately indifferent to Robinson.  The Nevada Board of Examiners voted Tuesday to settle with the family of Dr. Bob Robinson.  Gov. Brian Sandoval, who’s on the board, called the case “horrific” and said he’s apologized to the family.

The Richmond Register reported the disturbing incident by an activist judge who overturned and disregarded a jury’s verdict based on a technicality.  On June 25, a jury awarded $18 million in compensation to the estate of Eliza Jennings which had sued The Terrace Nursing Home.  The suit filed in March 2010 went to trial June 15.  Jennings developed several deep bedsores, including some that exposed bone and nerve endings and became infected. This was the result of the what was said to be the nursing home’s practice of leaving residents in diapers for extended periods to save money. Jennings also allegedly lost use of her limbs from lack of range-of-motion exercise.  Jennings suffered injury and wrongful death because the nursing home failed to provide the “degree of ordinary skill expected of a reasonable and prudent nursing home.”

However, Judge Jean Chenault Logue set aside the judgment and ordered a new trial based on erroneous jury instructions that she gave to the jury.  The judge allowed the plaintiff’s attorney to present “resident’s rights” claims and supporting evidence under state statute.  According to the supreme court ruling, some of those claim’s ceased to exist with the resident’s death.  The judge’s decision to allow those claims and then include them in her jury instructions “permeated all the evidence” the plaintiff presented, “resulting in immeasurable prejudice to the defendant,” according to the defense’s brief.

 

 

In the case of Eliza Jennings (estate) v. Terrace Nursing and Rehabilitation Center, a Madison County, KY circuit court jury returned a $18,000,000 verdict.  It included $4,000,000 for pain and suffering and $4.5 million more on resident’s rights claims.  The punitives totaled $9.5 million out of a maximum of $10 million.  See full instructions and verdict form JenningsVerdict.  The Terrace is a part of PMD Corporation, which owns 12 nursing homes across Kentucky.

“The facts of this case are horrific,” said Corey Fannin, an attorney with Wilkes & McHugh P.A. which represents Jennings’ estate.  The facility’s neglect caused Jennings to suffer several deep bedsores, including sores down to the bone and infections, including E. coli.. One deep-bone bedsore was the size of a softball and left her tailbone and nerve endings exposed. Evidence was presented at trial that The Terrace left residents in wet diapers for extended periods of time.

 

NewJersey.com reported the $1.4 million settlement involving The New Jersey Veterans Memorial Home in Paramusthe as a result of the death of one of two patients who choked to death at the facility within two weeks.  Suspicious or accidental deaths in nursing homes must be reported to the state Department of Health, but that notification did not occur in either incident. The 336-bed state-operated nursing home was later cited for a “deficiency” for failing to properly report the death of the second patient, identified only as Resident No. 29.

“Russell Larson was 85 when he choked on his breakfast after being left alone to eat in his room at the nursing home on June 10, 2012, according to court documents. His family claimed in their suit that the home failed to provide adequate nursing staff for the Navy veteran, who had a swallowing disorder and was supposed to be watched carefully whenever he ate.”

Just two weeks later, another patient also choked to death, records show. A nurse found the patient choking in the day room around 12:45 p.m. and performed the Heimlich maneuver on the resident, who died soon after, according to a state report.

The settlement with Larson’s family in Mahwah was reached in March and recently became official. The state veterans department will pay $1.4 million to the family but did not admit liability in the settlement.

The lawsuit accused the veterans home of “failing to provide sufficient nursing staff” to carry out Larson’s care plan, which called for him to receive assistance at meals because of a swallowing disorder known as dysphagia, which made him susceptible to choking. He also suffered from dementia.

“For these reasons, he was completely dependent on [the nursing home] to monitor, supervise and provide him with assistance while eating and drinking to avoid the risk of injuries and death associated with choking, aspiration, asphyxiation and death,” the lawsuit said.

The two deaths are not listed in inspection data included on a federal Centers for Medicare and Medicaid Services website, called Nursing Home Compare, which is billed as a way for consumers to help choose a facility for a loved one. Thomas said the citation issued to the nursing home for failing to report the second choking death was a “state deficiency, and thus would not appear on the federal CMS website.” Consumers have to file an open records request to learn about state violations.

On the federal website, the Paramus home has an overall rating of four stars, meaning an “above average” rating. In the category of “health inspections,” however, the ranking drops to three stars, or “average.” Three inspections over the last three years found five or more deficiencies.

 

CVN blog had an excellent article written by David Siegel on a recent multimillion dollar verdict involving the neglect of Doris Cote.  National for profit nursing home chain operator Five Star Quality Care Inc. decided to try a case where they recklessly neglected one of their residents.  The jury decided against them with a $16.7 million punitive damages verdict in Arizona state court after the jury compensated the family with a $2.5 million compensatory verdict for allowing an 86-year-old woman to develop an infected bedsore, bringing the total damages awarded to her family to $19.2 million.

Cote’s family filed an action against Five Star in 2012 for wrongful death and elder abuse, claiming that she was overmedicated with narcotics, allowed to fall multiple times, suffered from malnutrition and dehydration, and developed a prssure ulcer which got infected with Methicillin-resistant Staphylococcus aureus, known as MRSA.  The jury agreed that caregivers at The Forum at Desert Harbor recklesly and consciously disregarded policies and procedures required to keep patients from developing bedsores.  The jury also found that the staff intentionally falsified medical records to cover up signs of neglect like severe weight loss.  Cote weighed around 115 lbs. when she entered The Forum and lost nearly nine percent of her body weight due to malnutrition.

Lloyd explained to the jurors that Five Star’s valuation on the New York Stock Exchange is over $200 million and that the company brings in annual revenues of over one billion dollars. He asked the jury to award between $18 and $20 million.

IJ Review had the story and video of a resident being abused by caregivers.  In 2012, video evidence surfaced showing a brutal abuse of an elderly woman by two aides at a nursing home in Oklahoma City. Jurors awarded the woman’s family $1.2 million for emotional distress with an additional $10,000 in punitive damages, KOCO reports.

At Quail Creek Nursing and Rehabilitation Center in Oklahoma, two aides shoved latex gloves down the throat of Eryetha Mayberry while she sat helplessly in her wheel chair.  Wes Bledsoe, an advocate for reforms in nursing homes, discussed the harrowing footage:

“In my mind, there’s absolutely no question that these aides had abused other residents before this… This was not the first time that they had ever abused a resident and if it had not been for that camera they would have continued to abuse other residents.”

Lucy Waithira Gakunga and Caroline Kaeseke, the two women caught abusing Mayberry, were found guilty of abuse. Kaeseke is rumored to have fled the country while Gakunga served two years and was subsequently deported for her crimes.

Mayberry passed away less than six months after the abuse took place. She was 96 years old and suffered heavily from dementia and Alzheimer’s disease.

 

The NY Post reported that a settlement has been reached in the seven year case involving a resident who froze to death.  Prospect Park has agreed to settle the wrongful death lawsuit filed by his family for $750,000 — while the home’s half-dozen remaining residents still suffer in freezing temperatures, according to court papers and a lawyer for the judge’s family.  The late Civil Court Judge John Phillips — known in his heyday as “the kung-fu judge” because of his black belt — froze to death in his Prospect Park Residence apartment, court papers state. “Judge Phillips froze to death while confined to an unheated apartment at the defendants unlicensed facility in February 2008,” according to court papers filed by Phillips’ estate in 2010.

“The judge’s wrongful death is not an isolated incident,” said lawyer John O’Hara, who represents the Phillips estate. “He was confined and they were blocking doctors from seeing him and the heat went off and he froze to death seven years ago today. And there are still people freezing in there.”

An elderly woman who currently lives in the facility said the dining room and other common rooms are unheated and that the residents often eat in their rooms so they don’t have to brave the freezing dining room. “It was really bitter cold [at breakfast this morning.] My fingers were like ice. They had a little space heater but it didn’t generate any heat,” said the woman, who didn’t want her name used because she fears retaliation.