Partner Joe Desmond and Associate Jon Blanton obtained a defense award in arbitration in a wrongful death action brought against our client’s assisted living community by a former resident’s family. Prior to her admission, the decedent was assessed as requiring assistance with her activities of daily living and supervision with ambulation. During her residency, the decedent was hospitalized on two occasions. On the first occasion, she was hospitalized for an inner ear infection and on the second, which occurred less than 24 hours before the subject incident, she was diagnosed with a transient ischemic attack. On both occasions, the decedent presented with increased confusion, dizziness and an inhibited ability to ambulate independently over a three day period.
The morning after the decedent returned from her second hospitalization, she was exiting the dining room and fell, sustaining a fractured hip. No staff member witnessed the fall, and there were inconsistent statements about whether she collided with another resident, or whether she fell while reaching for her cane. The decedent’s hip never healed and she underwent several surgeries attempting to correct chronic dislocations of her right hip that had been occurring. After months of unsuccessful rehabilitative treatment, the decedent ultimately developed sepsis and passed away approximately three months after the subject fall. The decedent’s cause of death was listed as sepsis. The plaintiff alleged that our client should have re-assessed her upon her return from the hospital following the transient ischemic attack. The plaintiff’s expert testified that our client should have provided a wheelchair to the decedent, provided direct 1:1 supervision for 24 hours following her return to ensure she was using her cane, and reevaluated the decedent’s medications following her second hospitalization.
The defense presented strong expert testimony rebutting the plaintiff’s allegations that our client breached the standard of care using the over-arching theme that the goal of an assisted living community is to promote the dignity and independence of its residents to the maximum extent possible, and that the resident had returned to her baseline prior to the fatal fall. The defense proved that the staff complied with all regulatory requirements concerning assessment, care planning and supervision. The arbitrator found in favor of the defense and found no evidence of negligence.