Nursing Home Lawsuit that Changed a South Carolina Attorney’s Practice

South Carolina lawyer Andy Arnold used to focus primarily on employment law cases, until January 2001, when he took on his first nursing home abuse lawsuit and realized that he was also a skilled personal injury attorney. The nursing home lawsuit detailed below (in Andy Arnold’s own words) made Andy Arnold an advocate against nursing home neglect and elder abuse.

Nursing Home Lawsuit: Carrie Berry vs. ManorCare, Inc.

WHEN A LAWYER SPEAKS FOR THOSE WHO CAN'T SPEAK FOR THEMSELVES

The greatest responsibility in my 17 years of practicing law came in January 2001 when I represented Carrie Berry in her case against ManorCare, Inc., which owns Oakmont Nursing Home in Union, South Carolina. Mrs. Berry suffered from severe dementia and during the last years of her life had been unable to speak for herself. When she suffered double fractures of her lower left leg in June 1998 and again in August 1998, her pain was ignored. On both occasions Mrs. Berry lay in her bed in the dark for over 24 hours—suffering alone. She was unable to speak for herself. In January 2001, I was the attorney hired by the family and was given the the responsibility to tell the jury what happened to Mrs. Berry.

Mrs. Berry had already had one leg amputated due to her medical conditions. She could not walk. So the fact that Mrs. Berry’s lower left leg had to be amputated because of these incidents did not seem to the defense to be a significant harm. When the action had been filed, the defense wanted to know “what are her damages"? Over the next two years we discovered the true extent of her damages. We discovered that folks with dementia experience more pain than those of us with all of our mental faculties in tact. Why? Because when we experience pain, we understand that someone will help us. We understand that our pain is only temporary because doctors and the medicine they will prescribe will relieve our pain. We can cope with our pain.

However, an individual with severe dementia (such as Alzheimer’s) cannot reason through their pain. The pain torments those with dementia. An expert Forensic Psychiatry, pain management and pain medicine explained to me, and later to a Union County jury, that an individual with dementia who experiences pain also experiences fear and anxiety. Fear and anxiety lowers the threshold of pain thereby increasing the sensation of pain felt by those with dementia. The increased sensation of pain increases fear and anxiety which in turn lowers the threshold of pain…creating a vicious cycle of suffering. I learned that despite the fact that Mrs. Berry could not speak of her pain, Mrs. Berry had suffered more than words could express.

How could something like this happen? The answer turned out to be as outrageous as it was simple. Oakmont did not have sufficient staff on duty to care for all of its residents, and when something unexpected occurred, there simply were not enough nurses and certified nursing assistants (CNAs) on duty to provide the necessary care. Oakmont defended their staffing levels by stating that it had met DHEC’s minimum staffing levels. However, DHEC’s staffing ratios contain a catch-all provision which states that a facility’s staffing must be sufficient to provide adequate care for all of its residents.

From Oakmont’s own records we were able to calculate the “hours per patient day” of care received by Oakmont’s residents. This number represents the number of hours of care each resident gets on a daily basis. It is calculated by dividing the numbers of total hours of nursing care scheduled for a particular day by the number of patients (# of scheduled nursing/CNA hours ¸ number of patients.) Oakmont’s patients received about 2.1 hours per patient day of care. This meant that on second shift (when the first two fractures occurred) that Mrs. Berry would receive about 8 minutes of nursing care per hour. Studies have concluded that in order for a resident to receive all the care she needs, a patient needs between 2.5 and 2.7 hours per patient day of CNA time and that does NOT include nurse’s time.

Mrs. Berry suffered a double fracture of her left leg in June 1998 because there were not enough CNA's scheduled to work that day. She was left to suffer for almost 24 hours because of insufficient staffing. In August 1998, it all happened again because of insufficient staffing. Our economist testified that the corporation’s staffing levels were a matter of choice: The company had almost a billion dollars in net assets and had more than enough resources to hire additional staff had they so chose.The Joint Commission on Accreditation of Healthcare Organization’s (JCAHO) Standards for Long-Term Care states “negative outcomes frequently result from inadequate number of staff."

So, I went looking for “negative outcomes.” DHEC conducts yearly reviews of all long-term health care facilities and these yearly reviews are published on the internet. By looking at DHEC investigations and yearly reviews on the internet we discovered a negative outcomes experienced by other Oakmont residents, primarily bedsores and unplanned weight loss. Mrs. Berry’s own negative outcome, our expert told us, was itself evidence of understaffing.

The jury understood. The jury compensated Mrs. Berry’s pain and suffering with a million dollar pain and suffering award. But, more importantly, the jury understood the future consequences of a staffing policy that increased profits by cutting care, and awarded a million dollars in punitive damages.

As a lawyer, I learned many lessons from this lawsuit that I use in my other cases:  First, it is not enough for a nursing home to hire good people, if they don't hire enough good people.  Inadequate staffing makes injury a foregone conlusion.  Second, people will lie and falsify documents to cover-up their mistakes, but, a close examination and cross check of the entire record will expose the fraud.  And three, even those who cannot speak will communicate their pain:  Increased confusion, moaning, facial expressions, depression and sensitivity to touch.  And, again, medical records can tell a story, but there is no substitute for the testimony of a caring family.

Contact This Caring South Carolina Personal Injury Attorney

The above nursing home lawsuit inspired South Carolina personal injury attorney Andy Arnold to become an advocate against negligence of the staff of nursing homes and other long-term care facilities. He takes elder abuse, including medical malpractice by nursing home employees, very seriously. If you suspect that your loved one is suffering from nursing home negligence or if his or her wrongful death was the result of poor care in a long-term care facility, contact the Law Office of W. Andrew Arnold in Greenville, SC for a free consultation. Andy Arnold will give a strong voice to victims of neglect or elder abuse who cannot speak for themselves.