McCumber Daniels GETS FIRST
DEFENSE VERDICT
UNDER “NEW LAW” NURSING HOME CASE
McCumber Daniels obtained a defense verdict and the first known defense verdict in a new law case on Friday, February 27, 2004 after a week long nursing home jury trial in Orlando, Florida. The jury returned a complete defense verdict in the matter of Diane Pierce, as Personal Representative of the Estate of Evelyn Ross v. Adventist Health System/Sunbelt Inc, d/b/a ACC Courtland. The case was tried in the Ninth Judicial Circuit in and for Orange County. The trial began Tuesday, February 24, 2004 and the Jury returned their verdict Friday, February 27, 2004.
The trial team, on behalf of Adventist Care Centers Courtland (ACC Courtland), was comprised of Andrew R. McCumber and Kevin W. Richardson, of McCumber, Inclan, Daniels, Buntz, Richardson, Hartig & Puig, P.A. and Launa K. Rutherford of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A. McCumber, Inclan was added to the team as lead trial counsel in December of 2003.
The Plaintiff, Diane Pierce, was the Personal Representative of the Estate of her mother, Evelyn Ross. Plaintiff’s Complaint, pursued under the new law provisions of Chapter 400, consisted of two Counts alleging deprivations of Ms. Ross’ nursing home resident’s rights. Both survival and death damages were sought pursuant to Florida Statutes Chapter 400 and the Court declined to force the requested election between these remedies prior to the entry of judgment.
Evelyn Ross was admitted to ACC Courtland on December 8, 2001 and remained a resident continuously, with the exception of one hospitalization in February 2002, until her death on March 24, 2002. Plaintiff alleged that the facility staff at ACC Courtland was negligent in failing to prevent two falls Ms. Ross sustained during her residency. The first fall occurred December 23, 2001 and the second happened on February 11, 2002. Plaintiff attempted to substantiate her theory through the testimony of two retained experts (Richard Orlan, M.D. and Charlotte Sheppard, R.N.) who testified that it was a deviation from the applicable standard of care to have failed to provided a “clip-belt”, velcro belt, personal alarm or other type of re-directive device to prevent the falls, and that the falls caused her death. Plaintiff theorized that Ms. Ross’ falls caused an inability to eat sufficiently, decreased mobility, respiratory difficulties and, eventually, pneumonia. Plaintiff relied on the medical records of Ms. Ross to show increased depression, debility and decline following the falls.
The defense was predicated upon the theory that Evelyn Ross, who had suffered a severe stroke in 1992 from which she recovered, began suffering “silent” ischemic strokes in 2001; the cumulative effect of these “silent” strokes was increased tremors, more severe ataxia (difficulty maintaining balance) and dsymetria (lack of muscular coordination). Eventually, the physiological manifestations of these strokes caused Ms. Ross to become more withdrawn and to lose interest in life, eating and social activity. The defense was able to show, through the testimony of an expert neurologist, that the only brain abnormalities, identified by an MRI taken immediately after the February 11, 2002 fall, were the result of the initial 1992 stroke as well as the numerous “silent” ischemic attacks (strokes caused by a lack of blood flow to a particular region of the brain) and were not in any way related to the falls Ms. Ross suffered at ACC Courtland. The defense presented its case primarily through the cross examination of Plaintiff’s witnesses as well as through the defense’s expert neurologist and geriatrician. Testimony of an occupational therapist and a facility nurse charged with Ms. Ross’ care, and Ms. Ross’ primary care physician, confirmed the fine care provided by ACC Courtland.
Plaintiff was represented by the Attorneys Trial Group law firm located in Orlando, Florida; lead counsel for the Plaintiff was John Dill, who was assisted by his partner, Carlos Diez-Arguelles, and Armando Payaz.
The Jury deliberated for approximately two and a half hours before returning the verdict completely exonerating all employees of ACC Courtland of any negligence. McCumber Daniels wishes to thank the wonderful staff of ACC Courtland for the confidence shown in us.
