David S. Barmak Health Care Law Blog on Lawyers.com

TENDER LOVING CARE
GOES A LONG WAY

IN DEFENDING AGAINST
LAWSUITS

Our firm defended a nursing home against an intelligent and loving
daughter of a former resident.  Her aged mother had lived for years in a
nursing home other than my client. Her mom suffered multiple abuses in the
other nursing home, including decubitus ulcers and dehydration. Her mom fell,
fractured her hip, and was sent to a local hospital emergency room. The
hospital ER misdiagnosed the hip fracture by not recognizing it. Her Mom went
back to the other nursing home and fell again. This time the hospital ER properly
diagnosed the fracture and discharged her to our client’s nursing home. Her Mom
stayed in my client’s nursing home for 1 month.  She developed a UTI and
was transferred to the same hospital that had misdiagnosed her fracture. She
died there from her original injuries. Both nursing homes, the hospital and 10
physicians were sued.

After a year and a half of litigation, we were finally able to
depose the anguished daughter. We were in a lawyer’s conference room with at
least 10 lawyers. The daughter turned out to be highly educated and had her own
professional photography studio. It was obvious to us that she was devoted to
her mother and her mother’s memories.  She was also very angry about her
mother’s absence of care. Everyone in the room, except for us, were surprised
when her angry attitude changed after she was asked  about her mom’s admission to
our client’s nursing home. The daughter smiled and then began to cry.  She
told us that she had helped her mom move into a lovely room in our client’s
nursing home. She remembered helping her Mom to hang beloved pictures on the
wall.  She described how thoughtful and caring everyone in our client’s
nursing home was – from admissions to social work to nursing to management. She
said that her mom felt completely at home and was the happiest she had seen her
in years.  At this point the tears were streaming down her face. I offered
her a tissue and asked if she wanted a break. She said no thank you. I asked
her if she or her mom had any complaints about the care she received at our
client’s nursing home. She said the care was perfect.   I then asked
the toughest question of all because I did not want to be critical of her in
any way. I asked her why she kept her mom in the first nursing home for years
despite the suffering she claimed her mom experienced.  She was gushing
tears when she said “I thought my mom had to stay in whatever nursing home the
hospital sent her to.  I did not know that I could transfer her from that
awful nursing home.”  We then asked why she was suing my client if the care
was perfect and her mom had been so happy. She said her lawyer had told her to
sue everyone who provided any care for her mom, including our client. We asked if
she would consent to dropping the lawsuit against my client. She agreed on the
spot.

The point with this story is that quality care and compassion
may not help you avoid being sued but in the end it goes a long way towards
mitigating damages and sometimes completely exonerating your facility.

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