Defense Verdict For Nursing Home

Please see the case review below regarding an important win by Kirsten K. Ullman, Ullman Bursa Law, and Norris Cunningham, Stoll Keenon Ogden, against Searcy Denney Law Firm and Senior Justice Law Firm in the West Palm Beach jurisdiction.

On Friday, January 19, 2024, at 6 pm, the jury returned a DEFENSE VERDICT in favor of the leadership and care givers who provided amazing care, treatment and services to a resident who resided and was very well cared for during her 5-year residency, including on April 28, 2020.

On April 28, 2020, resident Sofia was served her lunch by her usual CNA,who had developed a relationship with her resident for the past 2 years,and had served her both breakfast and lunch, almost every weekday during that time period. The resident had a family who visited often and spent most lunch meals with the resident. When the unprecedented global pandemic of COVID-19 hit the world, and per Emergency order of Governor DeSantis, skilled nursing facilities were required to shut down most family visitation. Sofia’s CNA, who had developed a very special relationship of love and friendship, causing Sofia to trust her and to allow her to give her the care that she deserved (Sofia would hit, grab, and aggressively resist care of her care givers due to her Advanced Alzheimer’s Disease), chose to make it her commitment to keep Miss Sofia company during her meals. This extraordinary CNA was worried that Sofia would be lonely without her family visits.

On April 28, 2020, as with every other day during this extraordinary time of PPE shortages and daily new rules, guidelines, and directives while the world learned about COVID-19, this wonderful aide “parked” her over-the-bed table in Sofia’s doorway to her room and kept her company. This level of supervision was not required. Occasional checks were the appropriate level of supervision for Miss Sofia, but this was not for supervision; this was one of the many little things that this CNA did to make a difference in the life of her special resident.

Keeping Sofia company and happy was this aide’s priority, especially during COVID-19, as she attempted to soften the loneliness that COVID-19imposed due to mandatory emergency shut down of family visits made necessary by the highly deadly nature of the virus, which targeted the elderly and infirm, and was a real and present danger to our nursing home residents. During this time, this aide made it her priority to ease the burden of the unprecedented situation, and to spend special time and attention to make this resident calm, comfortable, and happy. She began sitting with Miss Sofia for breakfasts, and posting herself, with her own over-bed table, in Sofia’s doorway during lunch meals. Inexplicably, the family did not take the time to know the name of Ms. Sofia’s aide, even though she served her breakfast and lunch almost every day for years.

On April 28, 2020, Miss Sofia had breakfast with her aide bedside keeping her company. Lunch was then served. As always, her meal ticket listed the food which her aide set up, presented, explained, and served. Miss Sofia ate 100% of her lunch, and her aide came bedside and noted that she had a little more grape juice left and inquired if she wished to drink it. Sofia smiled and said she wanted to and took a sip as the aide proceeded to clear her tray and take it to the cart, just outside in the hallway. On return,less than a minute later, Sofia appeared to be sleeping. Her aide heard a funny noise, and realizing that it was coming from Sofia, summoned her nurse. Her nurse assessed her and heard some wheezing, checked her chart for an order to administer nebulizer treatment, and began same.

During nebulizer treatment, Sofia began coughing up mucous and phlegm.The Respiratory Therapist was paged and the unit manager, who was the unit manager for all of Sofia’s 5-year residency, knew this family well, and knew that the family required FULL CODE and ALL aggressive measures with their goal for their mother of “Longevity,” went to the nursing station to call 911 to send Sofia to the hospital. The unit manager and respiratory therapist both suggest in their notes that Sofia may have possibly aspirated.Lunch had recently finished, and Sofia also was coughing up mucus. Reasonably, possible aspiration was noted and reported to EMS.

Plaintiff’s claim, argued to the jury, was that, after 5 years of caring for a resident who admitted with advanced Alzheimer’s dementia, a swallowing disorder and on mechanical soft diet, incontinent of bowel and bladder, and with both verbally and physically aggressive behaviors, that the aide who had been assigned for 2 years, and who provided Miss Sofia with set up for both breakfast and lunch 5 days per week for 2 years, on April 28, 2020,left her unsupervised and unsafe, and gave her the wrong food, causing her to choke, aspirate, and ultimately die.

Plaintiff’s theme was that on April 28, 2020, 6 weeks into full COVID-19 andthe shut down to visitation per Emergency Order, that Sofia was served either peas, which are not permissible on her diet, or that she was served carrots, permissible on her diet, but that after the lawsuit family claimed they directed not be served.

Plaintiff’s claim continued that the nurse who provided Sofia with her prn nebulizer treatment with O2 via nasal cannula when she was noted with wheezing, should have first suctioned Sofia, despite a mouth sweep with no return. The Plaintiff’s claim went on that Sofia was hypoxic at 20% on room air (an obvious error in an after the fact summary note and a medical impossibility), causing “suffocation” and “asphyxiation” as per report references on the fire rescue report based on drop down menus in documentation (which drop down refences were belied by actual vital signs).

Plaintiff’s initial allegation was that there was an unwitnessed choking event. However, Plaintiff learned early in the case that the CNA who cared for Sofia for 2 years, posted herself in this resident’s doorway during COVID to keep her company during lunch, and was present during the lunch meal on April 28, 2020. The lunch meal was uneventful. The food served, was appropriate. There was no choking event at all.

The family learned that Sofia ate lunch without event. Even with the testimony of the aide that she was right there throughout the lunch meal and that Sofia was talking and smiling at the conclusion of the meal, the Plaintiff persisted in the lawsuit. The lawsuit was based on a nursing note made by the unit manager in an effort to summarize the change incondition and the immediate response by a multi-disciplinary team immediately following the transfer of this resident to the hospital. Based on second and third hand information, a note was made. The note contained 2mistakes. First, a refence to peas, based on glance of greenish mucous onthe resident’s face underneath the nebulizer mask, which she had coughedup during the nebulizer treatment, and a reference to 20% O2 sats on roomair, a status which nurses and experts alike had never seen in theircareers, and one expert questioned if it was even possible. The reference to 20%, of course, was a respiratory rate, not an oxygen sat rate.Oxygenation, based on the totality of the evidence, never dropped below88-89%, which was promptly corrected to 99%.

EMS, which arrived in minutes bedside, documented that oxygenation was97-98% from arrival at the nursing home through delivery of the patient to
the hospital. On arrival at the hospital, the patient was in no acute distress,her oxygenation was within normal limits, and she only required small supplemental oxygen via nasal cannula. Miss Sofia remained stable, and 7hours later, was discharged from the ER, and admitted to a regular hospital floor for Observation.

After arrival to her hospital room, a “funny” noise is noted and she has a reported aspiration event and cardiac event. A code was called, and per her Full Code status and directives for all aggressive care, she was intubated. The event 7 hours after discharge from the nursing home was similar to her change in condition at the nursing home. The Defense Cardiology expert explained that, within a reasonable degree of medical probability, the resident had a subacute cardiac event that morning prior to lunch, and had a similar, more pronounced event, that evening.

During the hospitalization, the family continued to demand all aggressive interventions for this 90-year-old end stage Alzheimer’s patient with diabetes, congestive heart failure, and many other disease processes.Hospice care was perpetually declined, and the family declined autopsy.This lawsuit followed.

Plaintiff demanded $3.75 Million in Closing Argument for 5 adult “children.”The jury returned a Defense Verdict. The care of the team at this skilled nursing facility for this 5-year residency was exceptional.

Score One For The Good Guys!!