Thursday, October 12, 2017

Daughters' Hidden Video Camera In Mother's Nursing Home Documents Caregiver Abuse; 10th Circuit Affirms $1.2 Million Damage Award

The 10th Circuit in Racher v. Westlake Nursing Home Limited Partnership, d/b/a/ Quail Creek Nursing & Rehab Center, affirmed an award of $1.2 million in compensatory damages to the estate of  Mrs. Mayberry,  a 90+ year old resident.  Key evidence included five video recordings, from a camera hidden in the resident's nursing home room by her daughters, that showed:

... [Employee] Gakunga slapping Mrs. Mayberry in the face with latex gloves, wadding up the gloves, stuffing them in Mrs. Mayberry's mouth, and forcibly holding them there as Mrs. Mayberry attempts to push Gakunga's hand away. . . . .  [A second employee] Kaseke is seen in the videos watching this take place. . . . . The videos then show Gakunga and Kaseke roughly lifting Mrs. Mayberry from her wheelchair into bed and Gakunga pushing on Mrs. Mayberry's face in what appears to be an attempt to make her lie down. . . . One clip shows Gakunga pointing her finger at Mrs. Mayberry and apparently scolding her or perhaps threatening her. . . . Finally, the video clips show Gakunga “performing some sort of compressions with both hands to [Mrs. Mayberry's] torso.” . . . .  Plaintiffs assert that this action was intended to force Mrs. Mayberry to empty her bladder so the caretakers would not have to change her diaper as often. . . . .  Quail Creek and the caretakers denied any knowledge of this practice, but acknowledged that there was no medical justification for the action.  

The daughters testified their mother went downhill as a result of the incidents that occurred between February and early April 2012 and that Mrs. Mayberry died in July 2012 "just three months after the abuse was discovered."

One issue on appeal was whether Oklahoma's "statutory limitation on noneconomic damages" of $350,000 was mandatory. Apparently the statutory cap was raised for the first time in a motion to "alter or amend the judgment," 28 days after the judgment was entered in the case and more than a month after the jury trial concluded.   In its September 28, 2017 opinion, the 10th Circuit had an interesting analysis of the interplay between federal rules of civil procedure and the need to "predict" state substantive law in a diversity case,  and "agreed with the plaintiffs that the cap is an affirmative defense that [defendant nursing home] waived."  

http://lawprofessors.typepad.com/elder_law/2017/10/daughters-hidden-video-camera-in-mothers-nursing-home-documents-caregiver-abuse-10th-circuit-affirms.html

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