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June Hall, Administratrix of the v. Episcopal Long Term Care

September 27, 2012

JUNE HALL, ADMINISTRATRIX OF THE ESTATE OF SALLIE MAE HALL, DECEASED, APPELLANT
v.
EPISCOPAL LONG TERM CARE, APPELLEE JUNE HALL, ADMINISTRATRIX OF THE ESTATE OF SALLIE MAE HALL, DECEASED, APPELLEE
v.
EPISCOPAL LONG TERM CARE, APPELLANT



Appeal from the Judgment Entered February 18, 2011 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): May Term, 2055 No. 2414

The opinion of the court was delivered by: Stevens, P.J.

J-S38011-12

IN THE SUPERIOR COURT OF PENNSYLVANIA

Appeal from the Judgment Entered February 18, 2011 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): May Term, 2055 No. 2414

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., and COLVILLE, J.*fn1

OPINION BY

In this nursing home negligence action, judgment in the amount of $154,902.98 was entered in favor of June Hall, as Administratrix of the Estate of Sallie Mae Hall, deceased, (collectively "the Estate") after the jury awarded compensatory damages for the injuries the deceased suffered as a result of neglect while she was a resident at the Philadelphia Nursing Home (hereinafter nursing home), which was operated by Episcopal Long Term Care (hereinafter Episcopal). The Estate filed an appeal, and Episcopal filed a cross-appeal from the judgment. After a careful review of the parties' numerous issues, we affirm the judgment as it relates to the jury's award of compensatory damages to the Estate, but reverse and remand for further proceedings as to punitive damages.

The relevant facts and procedural history are as follows: On May 31, 1996, the deceased, who suffered from various health problems, was admitted as a resident in the nursing home, where she primarily resided until her death on January 17, 2005, from cerebral vascular disease. The Estate instituted this action by filing a writ of summons on May 17, 2005, and on July 20, 2005, the Estate filed a civil complaint against various parties, including Episcopal,*fn2 presenting negligence and assault/battery issues as wrongful death and survival claims.

Episcopal filed an answer with new matter averring, inter alia, that any claims for injuries allegedly occurring prior to May 17, 2003, were barred by the statute of limitations. On May 27, 2008, Episcopal filed a motion seeking to amend its answer and new matter to present the defense of governmental immunity, and by order entered on June 30, 2008, the trial court denied the motion; however, Episcopal filed a motion for reconsideration, which the trial court subsequently granted, thus permitting Episcopal to file an amended answer with new matter. Thereafter, Episcopal filed an answer with new matter asserting, inter alia, the defense of governmental immunity, and Episcopal filed various motions for summary judgment. By orders entered on September 22 and 23, 2008, the trial court denied Episcopal's motions for partial summary judgment as to the claims of corporate liability and punitive damages. However, the trial court granted Episcopal's motions for partial summary judgment as to the Estate's wrongful death claims and Episcopal's statute of limitations defense.*fn3 With regard to the latter, the trial court held that judgment was entered in favor of Episcopal regarding all claims of negligence, damage or injury based on events or occurrences, which took place prior to May 17, 2003.

Episcopal filed 23 motions in limine on a variety of evidentiary issues including, inter alia, staffing, facility medical charts, testimony of former employees, jury selection, jury instructions, expert testimony, and the statute of limitations, all of which were denied by the trial court. The trial court granted several discovery requests in favor of Episcopal on issues such as employee personnel files.

On October 14, 2010, the matter against Episcopal, the only remaining defendant, proceeded to a jury trial on the sole survival claim of negligence.*fn4 At trial, the Estate commenced its case with the testimony of Edith Cleveland, the granddaughter of the deceased, who testified the administratrix, June Hall, is the great-granddaughter of the deceased. N.T. 10/14/10 at 6-7. While Ms. Cleveland is a listed beneficiary of the deceased's estate, June Hall is not a beneficiary. N.T. 10/14/10 at 14. Ms. Cleveland admitted she did not visit the deceased "that often" when she was a resident at the nursing home. N.T. 10/14/10 at 13. Ms. Cleveland indicated the deceased was not mobile, had a PEG tube for feeding purposes, suffered partial paralysis due to a stroke, and had cataracts. N.T. 10/14/10 at 13-15. When Ms. Cleveland visited the nursing home, she would complain to the staff that the deceased's hair was not combed or washed, her breath smelled bad, and her diaper was wet. N.T. 10/14/10 at 15-16. Although she attended care conferences to voice her complaints, and the nursing home staff assured her the hygiene issues would be rectified, Ms. Cleveland observed the same issues on multiple subsequent visits. N.T. 10/14/10 at 17-18. Ms. Cleveland admitted the deceased "would yell and scream when she was touched or moved." N.T. 10/14/10 at 24. Ms. Cleveland recalled observing the nursing home nurses assist the deceased with passive range motion exercises to her arms and legs and the deceased "would yell and scream." N.T. 10/14/10 at 24. Ms. Cleveland indicated that when the deceased was in pain the staff would not continue with the exercises. N.T. 10/14/10 at 26. On at least one occasion, Ms. Cleveland washed the hair of the deceased, who yelled and screamed. N.T. 10/14/10 at 31. Ms. Cleveland admitted that, when she complained the deceased was sitting in a wet diaper, the staff would change the diaper. N.T. 10/14/10 at 32. Ms. Cleveland observed the deceased had an air mattress to assist her in resting more comfortably, and the deceased did not voice complaints to her regarding the care provided by the nursing home staff. N.T. 10/14/10 at 33-37.

Robin Kachigian, RN, who was employed in various supervisory positions at the nursing home during much of the deceased's residency, testified that she "almost daily" served as a treatment nurse due to staffing shortages. N.T. 10/14/10 at 50-52. She admitted that, on one occasion, the deceased went to the emergency room suffering from dehydration. N.T. 10/14/10 at 52-53. With regard to charting treatment, Nurse Kachigian indicated that, as soon as medication is given or a treatment is performed, the nurse is to document it. N.T. 10/14/10 at 53-54. If a resident refused medicine or treatment, "[t]he nurse would usually put her initials in the block, put a circle around it, and on the opposite side of the page there are lines for comments, and that's where she would write what--whether or not the resident refused[.]" N.T. 10/14/10 at 54-55. If care is not documented on a chart, then Nurse Kachigian indicated it was considered not to have been done. N.T. 10/14/10 at 55. Nurse Kachigian admitted a skin assessment form dated 3/4/04, which she completed after examining the deceased, revealed the deceased had a stage II wound on her ankle. N.T. 10/14/10 at 56-57. However, notations on a different form for 3/4/04 indicated that, at 10:00 a.m., the deceased's "[s]kin integrity remains uncompromised." N.T. 10/14/10 at 60. Nurse Kachigian admitted she made an error on the latter form. N.T. 10/14/10 at 60. Nurse Kachigian admitted she "is human;" however, she did not admit that she made the mistake because of understaffing, which required her to perform multiple tasks at the nursing home. N.T. 10/14/10 at 61. Nurse Kachigian explained that, unless there is a significant change in a patient's condition, each patient generally has a quarterly care plan during which treatment is reviewed. N.T. 10/14/10 at 65-67.

Nurse Kachigian testified that, during the month of September of 2003, and some portion of October of 2003, there was no manager for West 1, which is the first floor of the nursing home where the deceased resided.

N.T. 10/14/10 68-70. Nurse Kachigian admitted a weekly nursing note from 9/4/03 indicated the deceased "[o]ften cries out to remove splints [from] lower extremities." N.T. 10/14/10 at 72. The weekly nursing note from 9/11/03 indicated the deceased often "screams out with [use of] restorative...splints [on] lower extremities." N.T. 10/14/10 at 73. The weekly nursing note from 9/19/03 indicated restorative care with splints was being used on the deceased, who "screams when splints are used." N.T. 10/14/10 at 74. The weekly nursing note from 9/25/03 indicated the deceased "screams and hollers when splints are on." N.T. 10/14/10 at 76. The weekly nursing note from 10/8/03 indicated "range of motion and splinting. Episode of screaming." N.T. 10/14/10 at 76-77. The weekly nursing note from 10/30/03 indicated the deceased "often screams" to "have the splints removed" during "restorative range of motion [session]." N.T. 10/14/10 at 77-78. Nurse Kachigian admitted the notes from September of 2003 to October of 2003 did not reveal that the deceased's pain medicine was increased, despite the fact she was crying out in pain during her restorative splint treatments. N.T. 10/14/10 at 78-80. However, in November of 2003, when Nurse Kachigian heard the deceased cry out during restorative care, she ensured that the deceased's pain medication was increased on 11/11/03. N.T. 10/14/10 at 79-80. The weekly nursing note from 11/13/03 indicated the deceased "[d]oes holler out during range of motion and turning. Duragesic has increased [from 25 micrograms] to 50 micrograms on 11/11/03....Skin assessment done. Some discolored areas and scabs but no breakdown. Continues on restorative nursing for exercises on...leg." N.T. 10/14/10 at 80; N.T. 10/18/10 at 6-7. The weekly nursing note from 11/20/03 indicated the decedent "[d]oes not like legs to be touched. Pain management seems effective." N.T. 10/14/10 at 81. Nurse Kachigian testified the decedent's pain seemed to be managed once the pain medicine, i.e., the Duragesic patch, was increased. N.T. 10/14/10 at 81.

On cross-examination, Nurse Kachigian testified that, in 2003 and 2004, there was "adequate staffing to get the job done" on West 1, the floor where the deceased resided. N.T. 10/14/10 at 14. Nurse Kachigian clarified that the stage II wound on the deceased's ankle, which was documented on the 3/4/04 skin assessment form, was "superficial" and not a pressure sore.

N.T. 10/14/10 at 15. Nurse Kachigian testified it was not unusual for a resident to have received care but the nurse forgot to so mark it on the resident's chart. N.T. 10/14/10 at 19-20. Regarding the use of splints on the deceased, Nurse Kachigian indicated the nurses followed the orders of a physician. N.T. 10/14/10 at 25. She testified as follows regarding the administering of pain medicine:

Q: Nurse Kachigian, the amount of the dosage for the analgesic Fantanyl, the Duragesic patch, there's been some testimony [it] was one time 25 micrograms, another time 50 micrograms.

Who's making that decision that should be the dosage of the painkillers to give to Sallie Mae Hall?

A: The physician will tell you you always start at 25 and work up as needed.

Q: And, again, that's a physician's judgment? A: Absolutely. Yes.

N.T. 10/18/10 at 25.

On re-direct examination, Nurse Kachigian admitted the deceased's physician would rely on the nurses to report if the deceased was experiencing pain. N.T. 10/18/10 at 27. Nurse Kachigian admitted that, from September of 2003 until November 11, 2003, the deceased, who was receiving 25 micrograms of the Duragesic patch, "screamed" out in pain during the range of motion exercises, which occurred six days a week. N.T. 10/18/10 at 28-29. The deceased's pain medication was not increased to 50 micrograms of the Duragesic patch until November 11, 2003. N.T. 10/18/10 at 29-30. On November 12, 2003, when the range of motion exercises were performed, there was no note of screaming and, in fact, the weekly nursing note indicated "pain medication effective." N.T. 10/18/10 at 30. Nurse

Kachigian denied that the nursing home was ever understaffed. N.T. 10/18/10 at 31.

Kathleen Roach, CNA, testified she worked at the nursing home for periods of time from 2001 to 2004, and on occasion, she worked on West 1, which is the floor where the deceased resided. N.T. 10/18/10 at 39-40. CNA Roach indicated West 1 had an "odor" because it was a critical care unit.

N.T. 10/18/10 at 41. CNA Roach testified West 1 was "short" on staffing and so "we really couldn't do the adequate care." N.T. 10/18/10 at 41. She indicated the conditions on West 1 were "really terrible," and, when she was assigned to assist on West 1, she would find "a lot of people that [were] wet, full of urine, feces, throwing up from the feeding tube, the trachs was---stuff was coming out of it, and bandages and stuff wasn't changed." N.T. 10/18/10 at 43. She found the condition of the residents' bed sheets to be "nasty," with the previous shift failing to change the sheets. N.T. 10/18/10 at 45. She observed roaches on the floor. N.T. 10/18/10 at 46. CNA Roach testified the conditions of residents not being changed in a timely manner and roaches being on the floor was found on all of the floors of the nursing home. N.T. 10/28/10 at 45-46. CNA Roach testified she knows complaints about understaffing were "passed on to management;" but she was not permitted to complain to families or the residents about the understaffing.

N.T. 10/18/10 at 47.

On cross-examination, CNA Roach admitted she worked at the nursing home for only two months in 2001 and then she left her employment. N.T. 10/18/10 at 52. CNA Roach returned to the nursing home on September 2, 2003, and worked there until December 19, 2003. N.T. 10/18/10 at 53. CNA Roach clarified that, during her three months of employment in 2003, she worked primarily on the fifth floor, and she was assigned to assist on West 1 on only one occasion. N.T. 10/18/10 at 53.

Julia McFadden, who was a CNA at the nursing home from June 17, 2002 to August 9, 2004, testified she was primarily assigned to the sixth floor; however, due to understaffing, she often worked on other floors of the nursing home. N.T. 10/18/10 at 59-60. CNA McFadden testified the nursing home was "[s]hort staffed all the time." N.T. 10/18/10 at 59. She noted the residents on West 1, such as the deceased, required constant checking and needed to have their diapers changed continuously. N.T. 10/18/10 at 60. She indicated that, because of understaffing, she was tired and unable to give the residents the care they really needed, including changing the residents' diapers in a timely manner. N.T. 10/18/10 at 60-62. When the nursing home was understaffed, she would observe residents with wet diapers and dried fecal matter due to their diapers not being changed in a timely manner. N.T. 10/18/10 at 64-65. CNA McFadden saw mice in the residents' rooms. N.T. 10/18/10 at 66.

On cross-examination, CNA McFadden clarified that, while she was assigned to work on the sixth floor, she was taken off the floor and assigned to work on West 1 when the nursing home was short-staffed. N.T. 10/18/10 at 72. This happened on more than one occasion. N.T. 10/18/10 at 72.

Andita Harley, who was a CNA at the nursing home from 2003 to November of 2004, testified she was originally assigned to the fourth floor but she was later transferred to work on West 1. N.T. 10/18/10 at 87. CNA Harley specifically cared for the deceased. N.T. 10/18/10 at 89. She testified the nursing home was "regularly" short-staffed, which would prevent all of the residents, including the deceased, from having their diapers changed in a timely manner. N.T. 10/18/10 at 90. She noted that, due to short-staffing, she was unable to wash the deceased, "had to rush," and cared for more residents than or which she was supposed to care. N.T. 10/18/10 at 89-90. CNA Harley indicated that "depending on staffing...[she] encountered double diapers" on the deceased. N.T. 10/18/10 at 89. She explained that "double diapering" includes putting a diaper on the resident, and then folding a towel between the resident's legs. N.T. 10/18/10 at 89. This permitted the CNAs to not change the resident as often without the bed sheets becoming soiled. N.T. 10/18/10 at 89. Despite finding the deceased's diaper having "rings from being saturated [with urine]" and containing dried fecal matter, CNA Harley did not have time to properly clean the deceased with soap and water. N.T. 10/18/10 at 90-91. She observed mice in the residents' rooms. N.T. 10/18/10 at 91. With regard to staffing, CNA Harley testified as follows:

Q: On [the deceased's] floor when the State [inspectors] were in the building, what was the status of staffing on the floor?

A: We were staffed.

Q: And when the State would leave, how would the staffing be ...


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