Fudge Broadwater, P.A.’s Donna Fudge and Ben Broadwater are pleased to announce another VICTORY in a Wrongful Death/Nursing Home case involving an overdose of Fentanyl, an Opioid.
Venue: Estherville, Iowa
Main Injuries: Wrongful Death of a 57 year old man, 8 days after receiving a Fentanyl, an Opioid, Overdose.
Verdict: The Jury, after deliberating just under 4 hours, issued a unanimous Verdict overwhelmingly in favor of the Nursing Home. The Nursing Home was found only 5% at fault, while the Co-Defendants, treating doctor, Dr. Anthony Cook and the Pharmacy, (both of whom had settled-out prior to conclusion of trial 1) were assigned 95% of the fault. The Net Judgment against the Nursing Home was only $2,500.
Trial: 8 Person Jury listened to 12 days of Trial Testimony. The case involved over 20,000 pages of medical records, live testimony from over 13 Fact and Expert witnesses, as well as testimony submitted via videotaped deposition from 3 Experts.
Trial Team: Donna Fudge and Ben Broadwater of Fudge & Broadwater, P.A. were the Defense counsel for the Nursing Home, with the excellent assistance of their Paralegals.
$5 Million: Punitive Damages
$500,000: Pre-death pain and suffering of decedent
$500,000: Pre-death loss of full mind and body of decedent
$500,000: Loss of consortium experienced by decedent’s surviving child
$30,000: Medical Expenses
Damages Awarded: The Jury only awarded a Grand Total of $50,000 in economic + non-economic damages. No Punitive Damages were awarded.
Complaint: The Complaint, filed on September 14, 2016, alleged Wrongful Death “in failing to provide the requisite care and treatment in accordance with the standards of practice of each defendant health care provider in the prescribing, dispensing and administration of a controlled substance [Fentanyl] to decedent.”
Parties + Attorneys: Slater & Norris, P.L.C. of Des Moines, Iowa, represented the Estate of Steven Anthony Mason, in a lawsuit against the Nursing Home (defended by Fudge Broadwater, P.A.), along with Co-Defendants Estherville Drug Co. (defended by Dough Phillips, Esq.), and Anthony Cook, M.D., Avera Holy Family, and Estherville Medical Clinic (defended by Joseph Fitzgibbons, Esq.)
Fudge Broadwater P.A.: Fudge Broadwater, P.A. was hired just 4 months before the Jury Trial started. At the time Fudge Broadwater was brought on board, no Experts had yet been deposed.
Survey Citation: The nursing home was facing a Survey Citation concerning its Nurse’s administration of the Fentanyl to the decedent without seeking clarification from Dr. Cook, and for failing to notify Dr. Cook of a change in condition at dinner time on the day following the administration of the Fentanyl Patch. The Survey Report also contained damaging opinions and statements by a handful of other Nurses who worked for the nursing home and were interviewed by the Surveyor. Fudge Broadwater, P.A. successfully got the entire Survey Citation, and all of the contents of the Survey Report, excluded from evidence as after-the-fact comments, by Nurses not involved in discharging the duty in question, whom had the unfair advantage of operating with the benefit of 20/20 Hindsight. Similarly, the Nursing Home’s nurses were not permitted to testify at Trial to those same prejudicial opinions or statements.
Background Facts: Mr. Steven Mason passed away in February of 2016 at age 57. He had been a resident at the Nursing Home for the previous 20 months. He was admitted in June of 2014 with approximately 27 different diagnoses, the most significant of which were Cirrhosis, Hepatic Encephalopathy, Diabetic Neuropathy and Chronic Pain. Mr. Mason took Lyrica, Cyclobenzaprine and Tramadol as part of his pain regimen.
The case initially appeared to focus only on the events of the final 9 days prior to Mr. Mason’s death during which the nursing home’s Nurse, administered a 125 mcg dose of Fentanyl pursuant to a handwritten Order by Dr. Cook. Dr. Cook claimed he wrote the dose at 12.5, not at 125 mcg.
However, once the facts began to come together, the Plaintiff and both Co-Defendants teamed-up to strenuously claim that the Nursing Home’s decision to ask Dr. Cook to re-evaluate Mr. Mason’s existing Pain Regimen was ill-informed and negligent. However, the Nursing Home’s trial team successfully made it clear that the Nursing Home Nurse’s decision to ask Dr. Cook to check into the pain regimen was not a misinformed decision as opposing counsels vigorously argued, but rather, Mr. Mason’s pain regimen had been an ongoing battle/discussion during the final 6 months of his residency. Since Mr. Mason continued to show signs that his pain regimen wasn’t as effective as it previously had been, a proactive note was written, out of compassion, by one of the Nursing Home’s RNs for Dr. Cook via an entry in the informal “Communication Book” (which is best described as a collection of “heads-ups” notes for the Doctors written in spiral notebooks).
The Communication Book entry stated “Steve Mason – Continues to use large amounts of Tramadol, question need for another pain regimen”. On the morning of February 1st, Dr. Cook either saw this entry himself or his Clinic Nurse, Sally, read it out loud to him. Dr. Cook then handwrote and signed an Order for Fentanyl for Mr. Mason. Dr. Cook did not speak to or examine Mr. Mason. Dr. Cook did not check the Medical Administration Record (MAR) or talk to any of the Nursing Home’s Nurses to ascertain what the entry’s reference to “large amounts” of Tramadol actually meant. He did not review any Medical Records or quarterly Pain Assessments. He did not even review any drug literature to ascertain what the manufacturer’s initial recommended starting dose was for Fentanyl. His Order was interpreted by the DON as a dose of 125 mcg of Fentanyl, noted shortly before noon, and then faxed over to the Pharmacist at Estherville Drug.
Estherville Drug claimed it never received the faxed Order and only filled the prescription based on the oral telephone conversation between the DON and the Head Pharmacist. Estherville Drug delivered the Fentanyl patches to the Nursing Home around 5:30 pm on February 1st. The patches (100 + 25) were applied to Mr. Mason just before midnight. Just before dinner time on Feb. 2, an experienced RN, who knew Mr. Mason well, documented:
“Standing at bedside with CNA, this nurse waiting to give meds at med cart in hall. Heard CNA say ‘Steve, come on’ and res noted still standing and not appearing to respond. This nurse enters and res gaze is distant and takes 2 verbalizations for res to focus on this nurse. Asked if he is OK and after prompt, shakes his head and states ‘I don’t know’. Appears unsteady on his feet. Assisted CNA to bring W/C (wheelchair) up behind res. To DR (dining room) via W/C and CNA advised to assure he eats.”
This nurse would later testify at trial, during the nursing home’s case-in-chief, that Mr. Mason’s blood sugar levels indicated this was a diabetic-episode, similar to previous occurrences she had experienced with this same resident, and she reacted as she had been trained to do in such circumstances. She ensured Mr. Mason was supervised while he ate and his blood sugar levels returned to normal. No further action was taken or noted until an LPN entered the following note just before midnight:
“Resident started on Fentanyl 125 mcg, increased tiredness noted, resident falls asleep right away, does awake easy. Resident denies pain. No further adverse reactions noted. Encouraged resident to push his call light for help with transfers.”
By 10 am on February 3rd, Mr. Mason was noted to be very lethargic and almost unable to answer questions and Dr. Cook was notified. Dr. Cook responded by simply ordering the dose be decreased from 125 mcg down to 50 mcg, and instructed the Nursing Home’s Nurses to replace the 100 mcg and 25 mcg patches with a single 50 mcg patch. Prudently, the Nursing Home’s Nurse questioned this Order and did not apply the 50 mcg patch without seeking further clarification due to Mr. Mason’s continued rapid decline. It was at this time that the Nurse, again, called Dr. Cook and he finally ordered Mr. Mason be sent to the ER, but without ordering Narcan or that the Fentanyl Patches be removed.
The Emergency Room Triage Notes indicated that Mr. Mason was admitted for an inadvertent Fentanyl Overdose. His condition briefly stabilized, but then continued to decline, resulting in Mr. Mason being airlifted to another hospital on February 6th. He was intubated for the transfer and remained on life support until it was withdrawn on February 9th per his Sister’s order (who had POA and was his guardian).
Defense Themes: The Defense had to weather several relentless attacks by the Plaintiff as well as by both Co-Defendants, where those parties all teamed-up to collectively try to place all of the blame on the Nursing Home’s Nurses. In chronological order, they alleged that: (1) the Comm Book entry was solely the result of a negligent math error/miscalculation by the Nursing Home’s DON, (2) the Nursing Home erroneously requested an increase in pain medications or stated that the Tramadol was ineffective in the Comm Book entry, (3) when relaying Dr. Cook’s handwritten and signed order to the Pharmacy, the DON was illegally placing a Telephone Order for a Schedule II Narcotic, (4) the Nursing Home misinterpreted Dr. Cook’s order to be 125 mcg when he had “intended” 12.5 mcg, (5) the DON should have recognized that 125 mcg was not a dose to start with, and thus, she should have sought Dr. Cook’s clarification at that time, and (6) the Nursing Home failed to report the change in condition to Dr. Cook that occurred just before dinner time on Feb. 2.
These false accusations were each adequately refuted one-by-one. First, Nurse Christina testified that she authored the Communication Book entry and that the DON’s miscalculated doses of prior Tramadol usage were not relevant to her when she wrote the entry, but rather, several independent factors drove her decision to make the entry. Secondly, we had numerous witnesses throughout the trial read the Communication Book entry to affirm that it did not state Tramadol was ineffective, nor did it ever ask for more pain medications. Then, the DON testified that her telephone call to the Pharmacist was simply a “heads-up” and was in no way a “Telephone Order”, which our Medical Expert, Dr. Robert Bender, confirmed. Addressing point 4, we had Dr. Cook step down from the witness stand and circle in red ink the clearly evident, decimal points contained in his other handwritten Orders containing doses of medication, and then asked him to circle the nonexistent decimal point in the Fentanyl Order in question. It was clear to everyone that Dr. Cook had not written a decimal point in his Fentanyl Order. Every Expert witness was asked how he/she read the order and each one admitted they read it as 125 mcg; just like the DON had read it. Dr. Cook was the only one who claimed it was 12.5.
Next, Dr. Bender confirmed that the Fentanyl Manufacturer’s Insert contained a “Recommended Initial Fentanyl Transdermal System Dose” chart that displayed a range from 25 mcg to 300 mcg, which would have given the Nurse no reason to question a dose of 125 mcg as an acceptable starting dose.
Lastly, our Nursing Expert, Gwen Suntken, confirmed that the significant change in condition did not occur until the morning of February 3rd, which was exactly when the Nurse did notify Dr. Cook. Nurse Expert Suntken agreed with the earlier live testimony from the experienced RN who wrote the Feb. 2 dinnertime note describing Mr. Mason as confused, unsteady, slow to respond and, in need of a wheel chair to get to the dining room. That experienced RN, who was a former employee of the nursing home by the time of trial, testified that she took Mr. Mason’s blood sugar level just before that dinner meal and it was only 80. She explained Mr. Mason was a brittle diabetic and 80 was low enough for him to be symptomatic. She further agreed that, on prior occasions, Mr. Mason’s blood sugar was at or near 80, he displayed symptoms consistent with those he had on the night in question. Thus, she explained she used her Nursing Judgment to conclude he just needed to be taken to the dining room to eat some food to raise his blood sugar level. She confirmed that by the time of her final entry for him at 7:10 p.m. that night, he had indeed returned to his baseline.
Defense Experts: Dr. Robert Bender (Des Moines, Iowa) (Geriatrics); Dr. William Hallett (Sea Cliff, New York) (Pharmacy); Nurse Gwendolyn Suntken (Mason City, Iowa) (Nursing)
Fudge Broadwater’s Scope of Practice: Fudge Broadwater P.A., is currently defending long term care claims in Florida, South Carolina, New York, Pennsylvania, New Mexico, Iowa, Illinois, Wisconsin, Minnesota and Nebraska.
1 While this is merely an educated guess, it is predicted that Dr. Cook settled out for at or near his insurance policy limit of 1 Million Dollars, and similarly that the Pharmacy settled out for approximately 1 Million Dollars as well.
Fudge & Broadwater, P.A.’s Donna Fudge and Benjamin Broadwater are pleased to announce Victories in two recent Stage IV Pressure Ulcer/Nursing Home cases in Florida.
- Defense Jury Verdict: Morgan & Morgan, P.A. represented the Estate of Willie F. Coley, in a lawsuit against TR & SNF, Inc., d/b/a The Nursing Center at University Village, and BVM Management, Inc. in relation to Mr. Coley’s 12+ year residency at University Village’s skilled nursing facility. The Complaint alleged negligence for the development of a Stage IV sacral/coccyx pressure ulcer. Mr. Coley passed away 15 months after leaving University Village and continued to have this pressure ulcer until the time of his death. A graphic photograph of the Stage IV ulcer was shown to the JuryThis case focused on the final three months of Mr. Coley’s 12+ year residency at University Village. Plaintiff alleged that University Village failed to implement appropriate interventions after re-admission from a hospital stay, and failed to revise any interventions after Mr. Coley developed his sacral/coccyx ulcer, in violation of the Federal Regulation for pressure ulcers, FTag 314. Plaintiff also alleged that the caregivers failed to follow the Facility’s own Policies and Procedures by failing to monitor/track the wound, and by failing to provide adequate pressure relief every 2 hours. As a result, Plaintiff alleged that University Village failed to prevent the development, and worsening, of Mr. Coley’s pressure ulcer. Lastly, Plaintiff alleged that the University Village caregivers failed to properly assess and treat Mr. Coley for Pain allegedly associated with his wound.
- Defense Themes: The defense focused on Mr. Coley’s 10 most recent Hospitalizations leading up to his coccyx skin wound and his 20 underlying Comorbidities including a history of cerebrovascular accident, sterocordal ulcer, dementia, paralysis, C. difficile, and GERD which contributed to Mr. Coley’s development and eventual worsening of his sacral/coccyx ulcer. The Defense proved that proper interventions were put in place when Mr. Coley was re-admitted from the hospital, but despite these interventions, Mr. Coley experienced an unavoidable “Friction Blister” that progressed to a pressure ulcer and eventually became a Stage IV with suspected osteomyelitis. The jury heard expert testimony that the healing of Mr. Coley’s left and right Buttocks skin wounds, adjacent to his Coccyx sore, was evidence that he was being properly offloaded in that area. The Defense argued that it met FTag 314 by: (1) evaluating Mr. Coley’s risk factors for additional pressure sores, (2) implementing interventions for the prevention of pressure sores, (3) monitoring the impact of those interventions by notifying the physicians of changes in the wound and obtaining new treatment orders such as a wound vac and an infectious disease consult, and (4) revising those interventions.
- Overcoming Documentation Problems: The nursing home had lost its wound tracking documentation. However, the Defense argued that any lack of documentation did not mean that there was a lack of monitoring. The staff consistently notified Mr. Coley’s physicians of changes in the wound’s condition, and a wound care physician was tracking the wound on a weekly basis from April 23, 2014 through June 4, 2014. The Defense pointed out to the jury that Plaintiff’s allegations were based on records that were “cherry picked” and it was explained that, in order to get a true and accurate understanding of the interventions such as repositioning, pain management and wound monitoring by the caregivers, the jury had to look at the entirety of Mr. Coley’s Chart, which was filled with evidence that these areas of care were actually provided.
- Jury Verdict: Following the 5 day jury trial, the jury returned a defense jury verdict in favor of both Defendants.
- Trial Team: Donna Fudge and W. Benjamin Broadwater of Fudge & Broadwater, P.A. were lead trial counsel. Caitlin Kramer, Esq., and Paralegals Amy Bozarth and Julie Christ of Fudge & Broadwater, P.A. assisted in the trial.
- Defense Experts: Dr. Aimee Garcia (Houston, Texas) and Alexa Parker Clark (St. Petersburg, Florida)
- Defense Award Arbitration: Granddaughter brought suit against the nursing home stemming from her grandmother’s multi-year residency at the facility. The allegations focused on a Stage IV pressure ulcer on the resident’s left hip which persisted in excess of 400 days, and required dozens of debridements, up until her death.
- Defense Themes: The Defense argued that the resident had multiple behavioral issues and refulsals of care that caused her skin wound, and thereafter made it impossible to heal. Specifically, the Defense presented testimony from Dr. Aimee Garcia, a wound care expert and member of the NPUAP (National Pressure Ulcer Advisory Panel), that the resident’s wound developed due to Trauma from the resident repeatedly scratching her left hip, and eventually deteriorated due to pressure as a result of the resident’s refusals to comply with turning and repositioning off of her left hip. The resident had a preference of laying on her left hip. The Defense explained that the resident had a resident right to refuse to be turned off of her left side despite its impairment to wound healing. The Defense also argued that the resident’s repeated removals of her wound dressings impaired the caregivers’ ability to prevent further deterioration of the wound, especially because the resident consistently refused to have her long fingernails trimmed and she used those fingernails to dig and scratch at the wound bed. The Defense explained that the caregivers were prohibited from physically or chemically restraining the resident in any way to prevent such behavior. In sum, the Defense argued that the caregivers met the resident’s care needs to the extent the resident would allow, put appropriate interventions in place and recorded their efforts to redirect the resident’s non-compliant behavior throughout the chart.
- Arbitration Award: Following a two (2) day Arbitration, the Panel entered an Arbitration Award in favor of the Defendant, finding that there was no breach of a duty owed to the resident.
- Arbitration Team: Donna Fudge and W. Benjamin Broadwater of Fudge & Broadwater, P.A. were lead Defense counsel. Caitlin Kramer, Esq. and Julie Christ of Fudge & Broadwater, P.A. assisted in the arbitration.
- Defense Experts: Dr. Aimee Garcia (Houston, Texas) and Alexa Parker Clark (St. Petersburg, Florida)