Long-Term Care Liability

We received summary judgment in the defendant’s favor in a nursing home malpractice case. The plaintiff claimed that the facility failed to prevent various conditions and injuries during the resident’s admission—such as UTI/sepsis, acute kidney injury/metabolic encephalopathy, dehydration and failure to thrive/weight loss, and skin breakdown. The plaintiff alleged these developments resulted in numerous damages, including, but not limited to, death. Our motion for summary judgment on behalf of the defendant sought dismissal on the grounds that the facility held immunity pursuant to the Pennsylvania Tort Claims Act. The plaintiff hotly disputed the issue. Ultimately, several rounds of briefing were required to achieve the ruling in the facility’s favor.

We obtained a defense verdict in binding arbitration on behalf of a nursing home client. The plaintiff alleged that the nursing staff provided inadequate pressure-reducing devices and negligently cared for his lower extremity, allegedly resulting in a below-the-knee amputation and permanent and total disability. We established that, not only did the nursing staff treat the resident in accordance with the standard of care but, also, the resident’s below-the-knee amputation was caused by the resident’s vascular conditions and comorbidities, not by any alleged actions and/or inactions of the nursing home staff. After a lengthy arbitration, the arbitrator ultimately found in favor of the defense.

We received a defense verdict in a nursing home malpractice matter involving the development and progression of pressure injuries the decedent experienced during her time in a nursing home. As a result of these injuries, the plaintiff claimed damages, including but not limited to pain, suffering and death. We successfully cited the resident’s significant comorbidities and the noncompliance with pressure reduction measures and nutritional support. 

We secured a defense award on behalf of a skilled nursing facility in a hotly contested “wound” case after a two-day arbitration. The 93-year-old plaintiff had been a resident at the nursing facility for over three years without having suffered any pressure injuries, despite a plethora of risk factors. In August 2019, she was transferred emergently to an acute care hospital where she was diagnosed with a myocardial infarction (MI) and cardiogenic shock. The hospital administered five days of a vasopressor, a life-saving medication that can increase the risk of pressure injuries, and recommended that she consult with palliative medicine due to her poor condition and prognosis. Within several weeks of her return to our client’s facility, she was found to have a Stage III left heel wound and a Stage II left buttocks wound. The wounds were treated and resolved within four and five months, respectively. At 99 years of age, she still resides at the facility.

We received a defense verdict in a contentious long-term care case that included a unique spoliation issue, allegations of cover-up regarding the cause of death and a “no show” plaintiff. A longtime nursing home resident, who was suffering from “end-stage dementia,” died nine days after suffering head trauma following a fall. The plaintiff was the resident’s son who was not his mother’s guardian. The plaintiff contacted a lawyer who delivered the body across Pennsylvania to a forensic pathologist for a private autopsy. No notice was provided to the nursing home administration of the impending autopsy, despite the fact that the lawyer had sued the long-term facility several times in the past. The corpse was cremated shortly after the autopsy without an opportunity for the defense to examine the body. The defense did not learn about the private autopsy until years later, when the report was provided in discovery. A motion for sanctions for spoliation was filed by the defense, which was followed by depositions of the funeral home staff and a hearing involving the forensic pathologist and the attending physician. Although the spoliation motion was denied, the court held that the defense could question the forensic pathologist on the cremation, destroyed specimens and failure to produce the autopsy photographs at trial. On the eve of trial, the judge proctored an agreement between the parties to arbitrate the case “on expert reports only.” At arbitration, plaintiff’s counsel continued to pursue a conspiracy theory about “the true cause of death” along with standard negligence criticisms about fall prevention. The plaintiff was cross-examined on a prior crimen falsi conviction and an Orphans’ Court petition initiated by the local Area Agency on Aging, wherein the deceased resident complained that she was afraid of her son, which was relevant to his “loss of society and companionship” claim. Not surprisingly, the plaintiff denied every allegation of the Orphans’ Court petition, which detracted his appearance and credibility. 

Justin Johnson and Lynne Nahmani (New Jersey) secured a directed verdict in a subacute rehab case. At the close of plaintiff’s case, three motions for directed verdict were made. The court agreed that the plaintiffs had not met their burden on causation with the expert testimony. Paul Laughlin (Pennsylvania) received a defense verdict in a case involving a patient with septic arthritis of the hip who was admitted to the hospital under strict fall precautions. Nurses downgraded the patient to standard fall precautions, and he fell and sustained a periprosthetic femur fracture. The fracture was surgically repaired, and he had a revision of his hip replacement. The patient subsequently developed complications in the form of recurrent infection and ultimately lost his leg. Leslie Jenny and Tracey McGurk (Ohio) received a defense verdict in a long-term care fall case. Joseph Hoynoski (Pennsylvania) tried a case with T. Kevin FitzPatrick, the former Director of our Heath Care Department, sitting second chair and received a defense verdict on behalf of an emergency room physician, hospital physician group and hospital. Brett Shear (Pennsylvania) received a directed verdict on behalf of his physician client. The plaintiff claimed that, during an excision of a submandibular mass, an excessive amount of hemoclips were placed deep into the mylohyoid muscle penetrating the lingual nerve. It was alleged that the physician failed to refer the patient to an ENT specialist when the plaintiff's surgical wounds were not healing and continuing to get worse over time. Ryan Gannon and associate Heather LaBombardi (New Jersey) earned a unanimous defense verdict in a three-week medical malpractice trial where they were able to establish that the proper steps were taken by their client during an orthopedic surgery, and the client met accepted standards of care. Kate Kramer and associate Gabor Ovari (Pennsylvania) handled a case that resulted in the plaintiff receiving less than the original offer.  Joan Orsini Ford (Pennsylvania) secured three successful defense verdicts for her clients. Adam Fulginiti (Pennsylvania), working with senior counsel William Banton, successfully defended a long-term care facility in a nursing home malpractice matter involving claims of vicarious and corporate liability After leveraging the case into binding arbitration, they obtained a complete defense verdict of "no negligence" on behalf of the facility and its corporate affiliates. Adam also obtained a defense verdict, working with associate Tara Fung, in Delaware County on behalf of an extended care facility. The plaintiff alleged negligence regarding the development and progression of wounds that the plaintiff’s decedent developed throughout her treatment at various medical facilities. The evidence presented to the jury supported the argument that the decedent’s wound development occurred prior to her arrival at the insured’s facility, and that while at the facility, the wounds were properly treated. Victoria Crawshaw Scanlon (Pennsylvania) obtained a medical malpractice arbitration defense award. The plaintiffs alleged that the defendant radiologist misread a head CT scan. Victoria successfully argued that, prospectively, the head CT showed what appeared to be a normal anatomical variant. It was only in retrospect, with the benefit of additional more sensitive imaging studies, that one was able to determine that the abnormality was not a normal anatomical variant. Associate Gabor Ovari (Pennsylvania) received a defense verdict at arbitration in a case where the plaintiff alleged that the defendants were negligent in performing tooth polishing. The plaintiff alleged that an injury to their tongue was caused by the negligent use of a handheld polisher.

In the complaint and throughout discovery, the plaintiff raised claims of overarching neglect in addition to a fall that occurred during physical therapy. The plaintiff alleged negligence, corporate negligence, and punitive damages premised upon allegations of understaffing, Department of Health violations and putting profits over patient care. The plaintiff sought to hold not only the nursing home, but also its management company and a holdings company, liable for such claims. The defense sought partial summary judgment and asked the court to limit the plaintiff’s claims to the fall only and argued that neither the record evidence nor the plaintiff’s expert reports supported the all-encompassing claims of neglect. The court agreed and narrowed the claims, thereby significantly hampering the plaintiff’s case. The court limited the claims to proceed at trial to the fall only. The court also dismissed punitive damages and dismissed the holdings company defendant outright.

We obtained an appellate decision affirming the dismissal, with prejudice, of a wrongful death lawsuit filed against a long-term acute care hospital in Florida. ​The claim alleged the hospital improperly transferred the patient to another hospital without an adequate handoff and appropriate medications, resulting in the death of the patient shortly after arrival at the receiving hospital. The plaintiff sought damages for medical negligence and intentional infliction of emotional distress. The Fifth District Court of Appeal affirmed the dismissal, with prejudice, on the basis that the plaintiff failed to comply with the mandatory pre-suit screening procedures required by statute and failed to assert an actionable claim for an intentional tort against the hospital.