Short-Term Victory in a Long-Term Problem

In this particular case, a woman who had been living in Buffalo Psychiatric Center for a long time had passed away. The mortician who received the body from the facility was so shocked by what he saw that he took it upon himself to get in touch with the family and suggest that they bring a case against the State which owned the facility where the victim of negligence had been a long term patient.

The family’s complaint triggered an investigation by the New York State Commission on Quality Care, which is based in Albany. The Commission sent an expert to investigate the complaint from the family. She was a psychiatric nurse, an African American woman, originally from Trinidad and Tobago. In addition to her own medical credentials, she had several family members in the U.S. who worked in medicine. This was a very principled woman, stern and serious. However, she wasn’t looking to get anyone in trouble–it was her job to get to the truth of the matter, plain and simple.

Because of this prior relationship, she referred the family to our firm.

What really sticks in my mind was a description of the body, which might have been deemed an exaggeration had it not been for the expressed shock of the mortician who had handled the body of this unfortunate person. The cadaver, it was said, had decubitus ulcers (a.k.a. bed sores) that were “big enough to put a football in.” The woman, in her 70s, was also emaciated.

An undertaker must see cadavers with ulcers and skin breakdown quite frequently. But this body’s terrible condition was above and beyond what would be considered normal, and resulted in us bringing a case on behalf of the family.

Ordinarily, we wait for a call from the client. But in this situation, the nurse was determined to have something more happen, something beyond the standard written report. Such reports rarely result in anything other than a “bad mark” or fine. Since this was a State facility, a fine would essentially be the State fining itself, which was unlikely to have any impact on the doctors or nurses who worked there. So, instead, she gave us the information and let us reach out to the family.

The family was from Long Island and had not had contact with their relative for a long time. The victim had been a psychiatric patient for most of her adult life. She had no spouse and no children. If I recall correctly, I spoke with her sister. Despite the lack of recent contact with the victim, the family was distraught by the level of neglect.

We brought the case in the NYS Court of Claims. We didn’t even need to requisition the full set of medical records; the previous few years were enough to provide us with evidence that supported our case. The nursing notes in her records were sparse, indicating that she was not checked up on frequently enough. There should have been numerous documented observations and remarks on her skincare and the development of ulcers. Instead, there were none.

It was painfully clear these sores had led to her death. In addition to their size, there was evidence of infection and sepsis. You simply don’t get sores of that size without neglect.

Early on, we were contacted by a lawyer representing the State. He offered $700,000 in damages to the family, and with their agreement, the matter was closed.

In these kinds of cases, there are two bases for assessing damages. One is economic loss, for those who are relying on the person for support. The other is pain and suffering. This woman had not worked in many years, so the award was purely for her pain and suffering, which was clearly protracted.

This occurred more than 30 years ago. The regulation for long-term care facilities has increased substantially, particularly emphasizing skincare and avoiding bedsores. A lot of those regulations, unfortunately, are not adhered to. We continue to get these kinds of cases, and not infrequently.

Even more tragic is that it was unlikely this case truly led to change at the facility. It likely caused little more than some heat on a supervising nurse. Many of these institutions with long-term care patients are understaffed. This was just a particularly grotesque example.

In one case, a woman lost both her legs due to neglect. More recently, what started as a mere bruise on a patient’s buttocks ended going all the way to the bone.

In the course of my career, I’ve spoken to attorneys who represent nursing home operators. I often ask why the client’s care isn’t better. Their response is always the same: these facilities do not have the staff. Many, if not most, are Medicaid patients and the State’s reimbursement rates are claimed to be inadequate to provide more and better staffing. Yet, somehow the owners seem to make a profit. I long ago concluded that this was a business where the patient’s needs are not at all aligned with the owner’s profit motive.

What does this say about our society?