Nursing Homes, Death by Steak Fries and Expert Witnesses

My readers know that I have written frequently about what can occur behind the walls of the finest nursing homes. Two cases reported in this week's Massachusetts Lawyers Weekly continue this thread.

The first case involves a case that settled with the family of a decedent for $1.25 million. Apparently, the resident, who was on a "soft" diet was left alone with steak fries. She started choking.Here's what happened next:

a) Nurse 1 didn't perform the Heimlich because she didn't want to aggravate a back injury;

b) Nurse 2 didn't administer any aid, but went to the chart to see if a Do Not Resuscitate Order had been given;

c) The staff then attempted to use a suction machine, which was found to be inoperable;

d) The next nurse administered the Heimlich and the food was expelled, but the resident was now pulseless;

e) The staff went to get the defibrillator that was supposed to be outside the resident's room, but they couldn't find it.

The resident died. Yes; this is a true story.

The second case involves a trial in which the resident broke two bones as the result of a fall. The trial judge granted a "directed verdict" for the nursing home because the plaintiff did not introduce expert testimony regarding the "cause" of the injuries. Now, in the vast majority of cases involving alleged medical negligence, expert testimony is required to prove the applicable standard of care, breach of the standard of care, and the cause of the injuries. However, an exception to this requirement exists when the breach and injury is subject to an "obvious, commonsense explanation". In this case, the appeals court noted that the plaintiff was not obligated to prove that her fall was the sole cause of her injury (she had preexisting osteoporosis), but only that the fall was a "substantial" contributing factor. The court further noted that the case did not require "exotic medical theories" to prove that "the aide allowing her to fall caused her injuries". In fact, the decision (quite correctly) pointed out that the fragility of the plaintiff increased the chance that a fall would cause those same injuries. A wonderful "commonsense" decision by the appeals court! I have stated many times, nursing homes are needed, and in many if not most cases, provide excellent care. But, the family must pay attention to the quality of care because bad, and often deadly things, do happen.


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