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Jury rejects claim in patient’s fall from window

Peter Vieth//July 13, 2018

Jury rejects claim in patient’s fall from window

Peter Vieth//July 13, 2018

Nursing Home Bed hospital - MAINAfter a five-day trial marked by a series of evidence rulings, a Lynchburg jury rejected the negligence claims of a nursing home patient who was injured when he leapt from a third-floor window.

Despite claims that the nursing home staff had warning of his prior escape attempts at other facilities, the jury apparently felt the patient’s bizarre accident was largely unforeseeable, according to lawyers in the case.

The lawsuit exposed an increasingly common problem for plaintiff’s lawyers in small to medium size communities: All the health care providers treating the plaintiff are employed by or aligned with the defendants.

The Lynchburg case – where the defendant was Centra Health Inc. – produced motions both to allow plaintiff’s lawyers’ access to treating doctors and to limit the testimony of some of those treating doctors.

Broken window frame

Although only 52, Raymond Jones had experienced a difficult medical course. He suffered two strokes in 2013, the second of which left him unable to express or comprehend speech, according to lawyers in the case. After two weeks in an acute rehabilitation hospital, he was moved to a Centra-owned skilled nursing facility, the Guggenheimer Health and Rehabilitation Center in Lynchburg’s Diamond Hill neighborhood.

According to his lawyer, Jones was confused and agitated. He tried repeatedly to leave the facility. Jones’ lawyer alleged the staff failed to feed him or medicate him in accordance with a doctor’s orders.

After about four hours at the new facility, Jones removed a metal window frame from its hinges and went out a third-story window while a nursing aide tried to call for help. He suffered skull fractures, broken ribs and a broken scapula. His lawyer contended the fall also caused a brain injury.

The windows in Jones’ room were designed to open only 10 inches, not enough to allow a patient to get through. There were alarms on doors and elevators and an alarm bracelet on the patient to try to prevent “elopement.”

The defendants argued it was unforeseeable that any patient would tear the window frame from its moorings to try to escape the facility.

Doctors linked to defendant

Jones claimed medical bills of more than $130,000. He demanded $2 million in compensation. A punitive damages claim was struck mid-trial.

Jones’ lawyer, Jeffrey J. Downey of McLean, said the defendant sought to hamstring his communication with treating providers. Downey complained he was effectively cut off from talking to Jones’ doctors as Centra took the position that Jones was precluded from contacting Centra-affiliated physicians.

“They try to use your own health care providers against you,” Downey said.

Centra lawyers later conceded Jones could properly contact practitioners who treated him after his fall since the defendants could not be liable for their actions, according to Downey.

Even after that issue was resolved, a key provider would only talk to Downey if a Centra in-house lawyer were present, Downey reported.

He cautioned other plaintiffs’ counsel that, regardless whether a provider’s conduct or treatment is implicated in a lawsuit, the provider may decide to exercise their right to counsel, Downey said.

During trial, Jones’ lawyer objected to a Centra-affiliated doctor offering expert opinions formed after the actual treatment of the patient. Judge F. Patrick Yeatts ruled that, without patient consent, the treating doctors could testify only as to diagnoses and other information developed during the course of treatment.

Yeatts also ruled that an exception allowing a practitioner to go beyond treatment opinions to protect his legal rights did not apply because the practitioner was not a defendant and the proposed opinion testimony was not related to patient care or protection of his legal rights.

Yeatt’s rulings on the doctors’ opinion testimony were set out in his final order in the case, entered April 23.

Windows bolted

Downey hoped to tell the jury that the nursing home had bolted shut all the windows in the nursing home after Jones’ escape. Centra, represented by L. Thompson Hanes and Ian Lambeets of Richmond, successfully kept that evidence out of court. Securing the windows was a “subsequent remedial measure” that should be excluded, the defense lawyers argued.

Downey said he was allowed to elicit that it would have been feasible to secure the windows, but he was barred from trying to show that the cost would have been only 50 cents per window.

Contributory negligence

The defense hoped to argue that Jones shared blame for his injuries, but Downey said Jones lacked the mental capacity to understand the consequences of his actions.

“This was a demented guy who had had a stroke. That’s ridiculous,” Downey said of the contributory negligence defense.

Yeatts ruled at trial that the defendants had not offered sufficient evidence of Jones’ contributory negligence to allow that issue to go to the jury.

Batson issues

Downey said he was frustrated in efforts to keep African-American jurors on the panel. During voir dire, about half of the African-American jurors said they had “strong, negative opinions” about the defendant nursing facility.

Downey said he challenged two defense juror strikes under the Batson standard, but Yeatts ruled the defense had articulated legitimate, non-discriminatory reasons for striking the two African Americans. One appeared to be asleep during part of the proceedings, defense lawyers said.

The final jury consisted of one African-American woman and six white jurors.

“Batson is not really an effective tool to prevent what is essentially racial profiling in the selection of a jury,” Downey said in an interview.

Defense verdict

To defend the nursing home, Hanes and Lambeets showed the jury a diorama designed to demonstrate the window frame and its condition after Jones’ escape.

“We think that helped the jurors have a better sense of the force that was required to de-hinge the window,” Hanes said.

The forcible removal of the window and frame was unexpected, the defense argued.

“The foreseeability issue was a big issue from our perspective,” Lambeets said.

Lawyers for both sides spoke with some of the jurors afterward. Two of the panel, the African-American and another woman, acknowledged they were holdouts for Jones, but eventually were persuaded to endorse a defense verdict.

The defense lawyers say they were told the jury took a long time to go through the instructions, a reassuring detail for lawyers who spend hours splitting hairs on the wording of a jury charge.

Lambeets said he and Hanes were “extremely surprised” at the extent of the jurors’ detailed review of the instructions.

Offer rejected

Three months after the verdict, Downey was still surprised at the loss. He acknowledged the unusual facts, but he thought the close proximity of a staff member would have bolstered the case for liability.

“If he had gone out the window with no one in the room, I would have thought this was a really tough case,” Downey said in an interview.

The only offer came shortly before trial, when Centra offered $250,000, according to Downey.

Centra Risk Manager Rhonda McGlothlin demurred as to the amount, but acknowledged the offer.

We made every good faith effort to try and resolve the case through settlement negotiations; however, the plaintiff had a very specific and unreasonable figure in mind, making it impossible to reach an agreement,” McGlothlin said in an email.

Our offer remained on the table throughout the first few days of the trial, until the plaintiff rested her case. After that point in time, all offers were withdrawn,” McGlothlin said.

Downey said the offer was not enough to help Jones and his wife. They faced “huge litigation costs, significant attorney fees and a Medicaid lien,” Downey said.

McGlothlin agreed that foreseeability was key.

While we are very happy with the outcome, we feel very badly for Mr. and Mrs. Jones.  This was an unfortunate accident that, despite the Plaintiff’s argument to the contrary, was unforeseeable based on the facts presented to the jury,” McGlothlin said.

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