Nov 25 2019

Joe Desmond & Joe Fogarty Obtain Defense Verdict in a Nursing Home Wrongful Death Action

Morrison Mahoney Partner Joe Desmond and Associate Joe Fogarty obtained a defense verdict after a two week trial in a nursing home wrongful death action. 

The plaintiff alleged that the 71-year-old resident suffered a massive hematoma to his thigh during a hoyer lift transfer.  (A hoyer lift is a powered device that medical staff use to lift and move a patient from a bed to a wheel chair.)  The patient’s health declined and he was hospitalized a week later and unfortunately died shortly after being admitted.  An autopsy revealed that he suffered a fatal pulmonary embolism that originated in the deep veins of the thigh as a result of the trauma.  The medical examiner testified at trial in favor of the  plaintiff. 

Statements written by the two nursing assistants (“CNA”) on the day of the incident asserted that the hoyer lift stopped working during the transfer and the bar of the lift struck him on the thigh.  The written statements were identical, including the spelling and punctuation errors. The incident was not reported to the Department of Public Health despite a legal duty to report it.  The failure to report was admitted as “consciousness of guilt” evidence over objection.  One of the assistants had not been trained on the lift.  Maintenance records revealed that the remote control was found to be broken two weeks before the incident.  There was no documentation that the remote was replaced.

An internal reenactment by facility management concluded that it was ergonomically impossible for the incident to have occurred as reported by the CNAs.  The conclusion was that the hoyer sling pinched the patient’s thigh causing the injury and that the CNAs were simply mistaken about how the injury occurred.  The defense theory was that the hoyer lift sling pinched the resident’s skin and that there was no negligence by the CNAs. This theory was supported by a statement by the decedent to the EMT on the night he was transferred to the hospital that he was “pinched” by the hoyer bar.  Photographs and a manufacturer’s video of the lift supported the investigation’s conclusion that the sling could potentially pinch the thigh in the area of the injury. 

Further, despite the lack of certification, the CNA involved had completed the state approved CNA class and was working within the 4 month grace period allowed by the federal regulations.  The agency nurse had been a long time CNA who was qualified to assist in the transfer despite her unfamiliarity with the specific model hoyer lift.  The testimony established that the injury occurred before the hoyer allegedly stopped working, rendering the maintenance issue moot.  Testimony of two of the plaintiff’s notorious experts was extremely limited by a challenge to their qualifications to opine on the standard of care applicable to hoyer lift transfers, and cross-examination discredited what was left of their opinions.

The jury returned a verdict in 3 hours, finding the defendant was not negligent.  

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