Nursing Home Negligence Arbitration

We represented the family of Mary O’Meara, an 83-year-old woman who died following her admission to a nursing home. Mary had complex chronic medical problems but she had been able to successfully live in her own home with the support of her family and professional care givers. Unfortunately, she developed some intense back pain and lost the ability to move around her home. She was admitted to the hospital where she was diagnosed with compression fractures in her back. Her primary care physician recommended to the family that Mary go temporarily to a skilled nursing facility where her pain would be managed and where she could regain strength and mobility through physical therapy.

When Mary arrived at the facility, her pain medication patches began to go missing. Due to her unmanaged pain levels, she was unable to participate in physical therapy and her condition declined. Later, when her pain patches did not go missing, the physical therapy was not resumed. Records from the facility reflect that she was not receiving adequate food, skin care, hygiene, or restorative therapy. The family visited frequently and tried to provide the care that the caregivers did not seem to have to time to do. Mary began to “fail to thrive” and she soon died. It was the nursing home’s position that the only harm that Mary potentially suffered as a result of its negligence was increased pain for a brief period of time and that her decline was not a result of its negligence but a natural progression of her chronic conditions.

What the family did not know until after their mother’s death is that the facility had knowingly hired a nursing assistant who was on probation for a methamphetamine drug crime. The family also did not know, until we filed a case, that the facility did not do an adequate background check before hiring this employee. Had it been done, the facility would have learned that she had been fired from two recent caregiver positions for positive drug tests. Nor did the family learn until the case was filed that the facility knew that drug thefts were occurring but had chosen not to report the crimes to Adult Protective Services or law enforcement until it had done its own investigation. Fortunately, a facility employee caught the nursing assistant red-handed and contacted Adult Protective Services.

After the facility rejected offers of settlement, the family brought claims against the facility and the nursing assistant, including claims for negligent hiring, supervision, and care, Elder Abuse under ORS 124.100, and intentional infliction of emotional distress. The case was submitted to a panel of three arbitrators and involved a multi-day hearing. The arbitrator panel determined that the facility was negligent in its care of Mary and that the nursing assistant committed Elder Abuse and returned an award against the facility for damages and attorney fees.