Long-term care operators need to help themselves and their sector by battling plaintiff lawsuits more aggressively, stresses a provider attorney who just recorded a unanimous victory in what he calls an “against all odds” case.
It took 12 jurors just 39 minutes to return their provider-friendly verdict in a wrongful death case that was four years in the making in a New Mexico jurisdiction known for attracting eager plaintiffs. In this case, attorneys representing the daughter of a deceased nursing home resident asked for $30 million in compensatory damages and up to 10 times as much overall with punitive damages tossed in.
In the end, they got nothing. This, despite having filed the case in the First Judicial District Court of Santa Fe County, reputedly one of the most plaintiff-friendly venues in the US. And that the case judge rejected every single defense motion and overruled every one of its objections as well, said defense attorney Paul Sheston, founder of Scottsdale, AZ-based Sheston Law Group. He’s defended providers in New Mexico and Arizona for 15 years.
In wrongful death cases in Santa Fe County, the defense rarely prevails on motions for summary judgment or evidentiary motions, and unanimous defense verdicts are even more uncommon, local courts watchers have noticed.
In addition, over the last several years, some incredibly huge jury verdicts, including many out of Santa Fe County, have been upheld by the appellate courts in New Mexico.
“That’s what was kind of amazing” about the victory, Sheston told McKnight’s Long-Term Care News Monday. “I just want people to know it can happen. They should not be throwing money at cases in mediation. You can fight it and win.”
Battling settlement inflation
He said the case is a prime example of how staunch providers can help lower costs for the entire sector. He also offered insight about turning points that could help defendants elsewhere.
“I really believe that if we brought more attention to the defense verdicts in places like this, it would be like how a high tide raises all boats,” Sheston said. “it would change the way cases are settled all over the place.”
In mediated cases, he pointed out, plaintiffs’ attorneys always want to emphasize huge settlements or “astronomical” verdicts in past cases.
“If we had more of those verdicts to bring to the attention of mediators when we settle [future] cases, it would bring down the overall value of what these cases get settled for everywhere. It would give us (defense attorneys) something to talk about (during negotiations).”
Sheston said he subscribes to the philosophy of prominent defense attorney John Hall: “Unless we fight and take cases to trial and win, the inflation of the settlement amounts is going to continue to get worse and that obviously hurts operators everywhere because their insurance goes up every year.”
Left the facility breathing
The case involved an elderly woman’s aspiration incident on Feb. 27, 2020, where despite 1-on-1 eating monitoring, the patient had a particle lodge in a lung. Workers at the Rio at Las Estancias quickly responded, Sheston said, and the patient was able to talk throughout the time the paramedics arrived to take her to the hospital.
It was there that a pulmonologist was not immediately consulted and particles were not removed for four hours, Sheston said. Subsequently, the patient suffered brain damage and died three days later.
“It was partial obstruction and she was still breathing and talking throughout the whole thing (at the rehab center). She was never without oxygen at our place,” Sheston explained.
The deceased’s daughter hired Milwaukee-based Pitman, Kalkhoff, Sicula & Dentice “within weeks” and Sheston was brought on in mid-2020. Eleven entities in all were named as defendants, including Las Estancias’ parent company, Rehab Suites at Las Estancias, and its Texas-based management company, Onpointe Health
Sheston said one lesson the case highlighted for all providers is to make sure someone’s responsible for quickly documenting all employees who respond to an emergency. The judge in this case disallowed the late addition of on-site respondents who were gradually remembered throughout the four-year case sequence.
Family dynamics also were important to know, before and after an incident, he said. Whether it’s social services or an activities director, know the family as much as you can, he advised. Sheston said the way the family interacted with staff at the time was “180 degrees different” from how they testified at trial.
In this case, it means the opinion of the deceased’s daughter, an only child, directly opposing staff testimony. Sheston’s investigative team, however, found a brother of the deceased, and “he told us the real story” and said that decades earlier, the deceased had called adult protective services against her daughter. “It gave an entirely different picture of their relationship,” Sheston explained.
Big problems after hand-off
The trial took place March 11-15, with the verdict decided promptly on the last day. Plaintiff’s attorneys wanted $10 million in compensatory damages in each of three categories. They also suggested the jury award punitive damages worth a single-digit multiple of that.
“We were able to show it was this prolonged period (at the hospital) where she had low oxygen that her brain is suffering a brain injury. It wasn’t the handful of minutes between the time that we gl and check on her and the paramedics take her out of the building. That’s not where this happened,” Sheston said. He noted that the statute of limitations to file any related lawsuit against the hospital ran out last year.
“They could have and should have (filed suit against the hospital), but these plaintiff attorneys feel the nursing home is the lower-hanging fruit, So they don’t want to muck up their theory against the nursing home with facts about what really happened. I think the jury appreciated the amount of science and medicine and the experts we put on. It was a very academic kind of presentation and they appreciated that they knew our stuff a lot better than they did.”
