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Dustin HermanNick DiCelloMichael Hill

Dustin Herman · Nick DiCello · Michael Hill

$6 Million Jury Verdict For Nursing Home Death Case

TLU Icon July 3, 2024 5:30 PM||TLU n Demand

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$6,000,000 unanimous verdict for the death of a 79-year-old man who was in a nursing home for short-term rehabilitation after he had surgery to remove cancer from his neck. Skin from his leg was taken for a skin graft. Plaintiff claimed the surgical site on the patient’s leg became infected and that the nursing home delayed in sending the patient to the hospital, and that, due to the delay, the patient became septic and died. The nursing home claimed the leg was not infected at all and that the patient aspirated and became septic very quickly and that there was no delay in sending the patient to the hospital.

The case involved the following issues:

  1. When Did the Patient Get Sick? Plaintiff framed the case as being about when the patient became sick. Plaintiff told the jury it was a Wednesday, Thursday, Friday case. On Wednesday, there was a concern about an infection. On Thursday, blood tests showed the patient had an infection and the patient also had a significant change in condition. On Friday, the patient aspirated, decompensated rapidly, and was sent to the hospital, but by then he was in septic shock and it was too late. Plaintiff claimed the patient should have been sent to the hospital on Thursday and would have lived. The nursing home argued there was no change in condition until Friday and the nursing home’s infectious disease doctor said the blood test results on Thursday did not show an infection. The nursing home claimed the patient aspirated on Friday and as soon as there was a change in condition on Friday, they sent him to the hospital.
  2. Are Text Messages Admissible? The family was sending text messages in real-time on Thursday showing a concern that there was a change in condition. The admissibility of these text messages was a huge issue at trial. Plaintiff’s’ counsel invited defense counsel to a forensic download of the text messages to eliminate arguments about authenticity.
  3. Did Patient Even Have an Infection? The hospital records had many entries that said the leg was not infected. The nursing home used these records to argue the leg was not infected and was not what caused the patient to go into sepsis, and thus that he was not sick until he aspirated on Friday. The nursing home records showed the patient vomited on Friday and decompensated shortly thereafter and was immediately sent to the hospital.
  4. Who Wrote “Reported”? Someone wrote “reported” on the blood test results, so the nursing home, through its corporate representative, argued that meant the results were reported to the nurse practitioner as required. But the nurse practitioner (a former defendant) said the results were never reported, and the nurse said she did not report the results. So a major issue throughout trial was whether the blood test results were in fact reported to the nurse practitioner.
  5. Would Patient Have Lived? The nursing home claimed that even if the patient was sent to the hospital on Thursday, there was nothing that would have prevented this patient from vomiting and aspirating, so nothing would have changed the result.
  6. How Long Would Patient Have Lived? This was a 79-year-old man with cancer. The nursing home argued he was a very sick man and would not have lived that long anyway.

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