May 18, 2012

Contact: Eric W. Boyer, Esq.
Managing Partner
305-670-1101 Ext. 1023

Nursing Home Defense/Negligence, Breach of Fiduciary Duty, Chapter 415

Robin N. Khanal

TAMPA, Florida –– Quintairos, Prieto, Wood & Boyer, P.A., trial attorney Robin N. Khanal (Orlando) obtained a defense verdict in Hillsborough County, Florida, in a nursing home case involving a 92-year-old resident suffering from restless leg syndrome. Plaintiff’s estate claimed the resident caught her left leg between her bed and side rail and tried to pull her leg back inside the bed causing a wound. Plaintiff theorized that a physician ordered bed alarm was not present and that the presence of a sharp or rough edge on the side rail was the mechanism of the injury. At closing, plaintiff asked for $500,000.00 to $1 million on claims of negligence, breach of fiduciary duty and Chapter 415 against the defendants: a licensee, management company, former executive director and former director of nursing.
The resident was admitted to the nursing home following a fall at home wherein she suffered a fractured pelvis. She was care planned for falls and a bed alarm was ordered. Two and a half days after her admission, the resident suffered a lower leg avulsion exposing bone, muscle and tendon. Plastic surgery was consulted at the hospital and skin graft surgery was thereafter performed. The resident was then transferred to another nursing home.
Plaintiff’s counsel argued that the ordered bed alarm was not present; otherwise, the resident’s movement in bed would have set off the alarm alerting staff to come to her aid before the injury. Under the defense’s objection, a state survey performed three months after the residency came into evidence. During that survey, 19 out of 38 sampled bed alarms were not working for various reasons. In addition, the resident’s daughter claimed that an emergency medical technician pointed out a sharp/rough edge on the side rail to her. Plaintiff further argued that the side rails should have been padded.
The defense argued that a sensor pad bed alarm would not have sounded even if it was in place due to the positioning of the resident while in bed. The defense also presented inconsistencies in the plaintiff’s theory of negligence – offering varying accounts of the event from the resident’s daughter and plaintiff’s two experts. All three pointed to a completely different area of the rail. The defense also demonstrated, again through the testimony of plaintiff’s own experts, that padded side rails are not the standard of care.
The jury returned a unanimous defense verdict within 90 minutes. This case had been previously tried in July 2011 and resulted in a hung jury. The trial court had granted defense verdicts as to the named defendant holding company as well as the company’s CEO and CFO. Plaintiff appealed the directed verdicts. Oral argument took place on April 3, 2012 and a Per Curium Affirmance was issued only 15 days later.

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