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Unique Defense Verdict in Nursing Home Case

September 20, 2011

Partner Charles S. Schechter recently tried this long term care case to verdict in Supreme Court, Nassau County. The case involved treatment rendered to a then 56 year old married woman with a history of progressive dementia. The decedent resided at the defendant facility until her death 5 1/2 years later. During the admission, her condition deteriorated as her dementia progressed. In the last year of the decedent’s life, she lost the ability to ambulate and was wheelchair bound. Although the decedent was not yet bed immobile, a care plan required routine turning and positioning. However, turning and positioning was not implemented until several months later.Five months after the decent became wheelchair bound, blisters were noted on the left hip and right shoulder, and a lesion was observed on the right buttocks. A physician was consulted and determined that the buttocks lesion was an abscess. Treatment of the abscess was started immediately, and a turning and positioning schedule was also implemented.  Over the next few weeks the abscess opened and became infected. The decedent was treated at a local hospital for what was diagnosed there as an infected Stage IV pressure ulcer and sepsis. The ulcer was debrided and the decedent returned to the nursing home, where she expired several months later. At trial, plaintiff alleged nursing home abuse, negligence and violations of Public Health Law 2801-d. Plaintiff alleged that defendant facility violated seven federal regulations governing nursing home care, and sought both compensatory and punitive damages. Plaintiff focused on wound care management and alleged improper record keeping. MCB contended that the overall management of the resident’s care was appropriate, her entire course was dictated by the progressive nature of her disease and that there was no evidence of any abuse. We further contended that the buttock ulcer was an abscess, and not a pressure ulcer, so that any allegations in respect to turning and positioning were immaterial. After approximately four weeks of trial, the jury returned a defense verdict on all twelve liability questions which were presented for its consideration.

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