John Walsh and Michael O’Connell have successfully defended against a plaintiff’s Motion for New Trial in a nursing home case, in which their client received a Not Guilty jury verdict in October, 2013. In this wrongful death case, the plaintiff’s attorney had asked the jury to award total damages of more than $3 million to the patient’s adult son, age 60. The trial judge’s denial of the Motion for New Trial upheld the Not Guilty verdict rendered in favor of the nursing home.
In November, 2007, the 90-year-old female patient was admitted to a south suburban skilled nursing facility for occupational and physical therapy after being hospitalized at a downtown medical center for fractures sustained in a fall at home. She had broken both of her thumbs (repaired with pins) and right upper arm when she fell getting out of the car. At the time of admission to the nursing home, she had casts on both hands, which prevented her from being able to feed herself, wash, and perform most activities. She was also on a liquid diet due to nausea from surgical anesthesia, and she had a history of chronic anemia, atrial fibrillation, pulmonary emboli, hiatal hernia, and gastrointestinal blood loss. She was switched to a regular diet on her second day in the facility, and a registered dietitian consulted on her nutritional needs. Over the next two weeks, she ate generally only 10% to 50% of her food, was given daily multi-vitamin and iron supplements, and occasionally refused to take her medications and physical therapy. She developed a small sacral pressure sore and a skin tear one week after admission, which were treated. Her son visited daily and expressed concerns about the pressure sore and her not eating all her food. Various lab tests were performed to determine if an infection was keeping her from eating, but all tests were negative or within normal limits, except for hemoglobin and hematocrit, which were below normal levels due to her chronic anemia. Nurses and the son encouraged her to eat and take her medications, without success. After two weeks, she was given a Fentanyl patch for complaints of pain, and an IV line was started to keep her hydrated. The following day, she became disoriented and was transferred back to the downtown medical center for an evaluation of her mental status change. She was admitted there with a diagnosis of “failure to thrive.” The admitting doctor noted that her pressure sore was healed, and he ordered therapeutic care for a urinary tract infection and other conditions. The patient continued to eat poorly, and the doctor recommended tube-feeding. The son said her living will would not allow mechanical means of keeping her alive. She died of multi-system failure two weeks later, leaving her 92-year-old husband (who had mild dementia and for whom she was the principal caregiver) and 60-year-old son surviving her; her husband died in 2011. Her estate filed suit for wrongful death and violations of the Nursing Home Care Act. The son testified that he often found his mother in dirty diapers and sheets, that the staff never determined why his mother was not eating, and her assigned physician was never at the facility to see or care for her. The nurses and physician asserted that the care complied with the standard of care, the patient gained 4.5 lbs. during her two weeks at the facility, her pressure sore would not have healed without adequate nutrition, a patient who is coherent and communicative, with cognitive skills for daily decision-making, cannot be forced to do anything against her consent, her dignity must be respected, and her death was not a result of care received at the nursing facility. Plaintiff has filed a Notice of Appeal.