One of the keys to success in a Louisiana nursing home negligence/injury case is winning the medical review panel.  This is difficult.  It requires a lot of time, money and hard work.  Many times, we uncover attempts by the nursing home to hide or alter evidence.  Below is a position paper for a client who was injured when she was allowed to wander/elope from the home. You can see from this paper how far the nursing home went in attempting to hide their responsibility.  You can also see that we went even further to uncover their negligence.

PLAINTIFFS’ POSITION PAPER

BRIEF FACTUAL BACKGROUND

On or about July 5, 2003 Aline B., age 93, a resident at Evangeline Oaks Guest House, was allowed to elope from that facility.  She was found later a block from the nursing home by police who were called by a citizen.  During the elopement she fell and fractured her left hip (left femoral neck).  She was hospitalized at Our Lady of Lourdes and underwent surgery for the hip fracture performed by Dr. Barry Henry on July 6, 2003.

Ms. B. returned to defendant’s facility July 18, 2003.  On readmission to the nursing home, a body audit was performed and Ms. B. was without skin breakdown.  Ms. B. had to be readmitted to Our Lady of Lourdes August 3, 2003 at which time a severely infected right great toe was discovered.  The toe eventually became gangrenous and caused sepsis.

After multiple hospitalizations, Ms. B. passed away October 27, 2003.  The death certificate lists the cause as sepsis.  The immobility caused by the hip fracture, the sepsis caused from the toe infection, and Ms. B’s preexisting conditions, to include diabetes, hyperlipedemia and Alzheimer’s contributed to her death.  Defendant’s negligence (the fall, the toe) was the catalyst to her decline.

Defendant’s nursing home breached the standard of care in failing to prevent the elopement and fall.

Defendant’s nursing home breached the standard of care in failing to prevent and/or discover Ms. B’s severely infected toe.

[This panel should note from the outset that the defendant altered numerous records in an attempt to hide the evidence relating to both the elopement/fall and the toe infection.  Specifically, nurses’ notes for the day of the fall were redone for the purposes of eliminating key facts in reference to the elopement/fall.  An incident report for the elopement/fall was also redone.  A back entry to the nurses’ notes was made after Ms. B’s toe infection was discovered at the hospital.  Counsel for plaintiff discovered the alterations to the medical records after defendants were ruled into court on a motion to compel production of their entire medical record and the incident reports.

Based on what was uncovered, there is a clear case of substandard care in reference to both injuries.  However, based on the great lengths the defendants went to conceal their negligence, it is uncertain how many other alterations were made which have not been caught.

The fraudulent record alterations will be discussed further below.]

THE ELOPEMENT AND FALL

Ms. B was admitted to defendant’s facility on or about December 27, 2001.  Attached herewith as Exhibit “1” in globo are the accumulative diagnosis, record of admission and discharge summary from Evangeline Oaks Guest House.  This will give the panel a good idea about Ms. B’s preexisting conditions.  As indicated before, Ms. B was 93 years old at the time of her accident.  Her diagnoses included insulin dependent diabetes mellitus, hyperlidemia, congestive heart failure, osteoarthritis, generalized NOS, cardiomyopathy and incontinence.  Alzheimer’s and poor appetite were also a part of her diagnosis.  However, prior to her fall on July 5, 2003, Ms. B was in generally good condition.  She was not immobile.  She walked throughout the nursing home with the aid of a walker.  Nursing home employees whose depositions have been taken and will be discussed further below, described Ms. B as nice, polite and quiet.  Attached herewith as Exhibit “2” in globo are the MDS performed July 1, 2003 and two relevant RAP modules.  The “cognitive loss/dementia” RAP module details the following:  “Some memory loss.  Decision making are poor.  She is 93 years old.  Some hearing loss.  Some _______ loss.  She likes to ambulate with a walker.  She wanders.  She is wearing a wander guard.”  The “behavior symptoms” RAP module contains the following summary of findings:  “Resident is confused at times.  She explains that she is going home or going to meet her daughter at times of wandering.  Resident walks well with her walker and may go from place to place rather quickly.  This could endanger resident as she could wander off and fall or become hurt elsewhere than where she should be.  Staff should check wander guard and monitor resident often so that she may not wander too far and reorient resident to her room where she can visit with her roomie and await her family there.”  Again, these observations were made 7/1/03 shortly before the elopement and fall and seem to predict this accident.  Unfortunately, the nursing home failed to take the necessary steps to prevent the accident.  It failed to heed its own warning.

The elopement occurred at roughly 11:30 p.m. on July 5, 2003.  A complete copy of the nurses’ notes are attached herewith as Exhibit “3”.  The panel should note that prior to the actual elopement, Ms. Broussard had attempted to elope at 10:45 p.m.  The nurses’ notes reflect that she was brought back to her room and put to bed.  Attached herewith as Exhibit “4” is the original nurses’ note pertaining to the elopement (prior to alteration).  It reads as follows:

“Resident left nursing home through side door [left] side near laundry.  Alarm did not go off.  Found [ambulating] down street with walker.  Stated she was going to dance.  C/o of pain to L thigh.  Stated she fell while [ambulating].  B/p 140/70, P 90, R 18, T 97.6.  No discoloration or swelling.”

If this panel will refer to the nurses’ note for the accident contained in Exhibit “3”, it will see that the entire page was recopied to eliminate two things:  (1) reference to how Ms. B was able to elope (i.e., through the laundry door), and (2) reference to her fall.

Counsel for Ms. B took the deposition of the nurse who made the alterations, Ms. Dixon.  Ms. Dixon was one of two LPNs who went to the scene of the elopement and escorted Ms. Broussard back to the facility.  She was asked about the door Ms. B escaped from beginning at page 26 of her deposition.  She stated at first that the alarm did not sound when she checked the door after elopement but admitted on cross examination that she never checked the door to see if it would sound the alarm when a wander guard was being worn.  Her testimony from page 27 of her deposition indicates that she is unaware of exactly how the wander guard Ms. Broussard wore works with the door alarm.  This is disturbing in light of Ms. Dixon’s position.  She is the night LPN in charge of the CNAs and responsible for directing patient care.

As the LPN in charge, Ms. Dixon was also required to fill out an incident report.  This document was titled “The Louisiana Nursing Home Malpractice and General Liability Trust INA Reporting Form”.  The incident report was attached to Ms. Dixon’s deposition as “Dixon Exhibit 1”.  It is attached to this paper as our Exhibit “6”.  It reads:

“Got a phone call from a lady.  Lady stated a lady was walking down the street.  I (Laura) left in my car to find her.  Other staff were searching inside nursing home.  When I (Laura) went around the corner noted police and ambulance were next door to nursing home.  Other staff members were already there.  Resident confused.  Stated she was going to a dance.  Helped resident to [wheelchair].  Brought back without difficulty . . .”

The above incident report contains no reference to (1) how Ms. B was able to elope or (2) the fact that she had fallen during her elopement.  After the court requested motion to compel, the plaintiffs were able to obtain the original incident report filled out by Ms. Dixon.  That is attached herewith as Exhibit “7”.  It reads:

“Resident left nursing home found ambulating in street.  Brought back to NH [without] difficulty.  C/o pain to left thigh.  Stated she fell.  No discoloration or swelling to area.”

If this panel reviews Ms. Dixon’s deposition, it will see that she paints quite a different picture of how the fracture was discovered after the fall.  It appears that the nursing home planned to maintain that Ms. B did not fall during the elopement and that the fracture was discovered hours later.  Counsel can only surmise that the nursing home planned to argue that the hip fracture was spontaneous.  This is a common defense used by nursing homes when the elderly suffer fractures as a result of their negligence.[1]

At page 22 of her deposition, Ms. Dixon states that she did not assess Ms. B when she found her outside.  At page 20 she described that Ms. Broussard “jumped” after assessing her in the TV room some thirty minutes or so after returning to the nursing home.  At page 24 of her deposition Ms. Dixon commits perjury.  She is questioned as follows:

“Q When do you believe that fracture took place?

A I don’t know.  I really don’t know.

Q Do you think it took place in the hour or so she was sitting in the TV room?

A No, she never got up.

Q Do you think it took place while she was gone from the nursing home after she had eloped?

MS. CREDEUR:  I would object.  That is speculation. 

MR. ST. PÉ CONTINUING:

Q You can speculate. 

A I don’t think she fell.  The woman was too clean.  And if she had fallen outside, maybe she couldn’t get up by herself.”

Prior to the discovery of the altered incident report, Ms. Dixon was attempting to hide the fact that she knew exactly how Ms. B suffered her hip fracture.

This nursing home was divided into two main sides, the orange and the gold.  A copy of the diagram of the nursing home provided by the administrator, Landreneau, is attached herewith as Exhibit “8”.  Ms.B resided in Room 302 on the gold side of the nursing home.  Attached herewith as Exhibit “9” is the deposition of LPN, Ryder.  LPN Ryder was in charge of the orange side (Ryder Depo, P. 9).  The nursing home is divided in two sections with the activity room, dining and kitchen area, and formal dining room separating the two sections.  Mr. Ryder describes that he would not have heard the wander guard alarm from his side of the nursing home (Ryder Depo. P. 15).  He testified that he did not hear any alarms on the night of the elopement (Ryder Depo. P. 15).  Attached herewith as Exhibit “10” is a statement provided by Mr. Ryder following the incident.  Mr. Ryder went with Ms. Dixon to the scene of the elopement and assisted escorting Ms. B back to the facility.  He notes “Wander guard was on resident and did set off alarm upon entering the building.”[2] At page 34 of her deposition, Ms. Dixon explained that the CNAs may have been getting supplies at the time of Ms. B’s elopement.  She implies that this may have prevented them from hearing the alarm.  At page 35 of her deposition Ms. Dixon also indicates that the CNAs may have gone to the orange side of the nursing home to socialize at the time of Ms. B’s elopement.  At page 28 of his deposition Mr. Ryder described that the CNAs liked to sit and talk during the night shift.  Plaintiffs believe that the staff may have been “visiting” on the orange side of the nursing home at the time of Ms. B’s elopement.  Regardless of how she was able to elope, Evangeline Oaks was negligent for allowing it to occur.  Plaintiff will discuss further below the nursing home’s duty under the federal OBRA regulations and under its own policy and procedure.  The nursing home has a duty to prevent elopements.  This was admitted by LPN Ryder in his deposition (Ryder Depo. P. 32) and by the nursing home’s administrator, Doug Landreneau in his deposition (Landreneau Depo., Exhibit “11”, P. 44).  Mr. Landreneau, beginning at Page 44 of his deposition, tried to blame the elopement on a system failure.[3]  Mr. Landreneau’s deposition was also taken prior to the discovery of the altered nursing home records.  Based on his testimony, he apparently was a part of the attempt to cover up exactly how this accident took place.

THE HIP FRACTURE

Attached herewith as Exhibit “12” is the history and physical for Ms. B’s admit to Our Lady of Lourdes July 6, 2003 following discovery of the hip fracture.  The fracture was diagnosed and a consultation with orthopedic surgeon, Dr. Barry Henry, was requested.  Dr. Henry’s consult report is attached herewith as Exhibit “13”.  His assessment included left femoral neck fracture.  He performed surgery July 6, 2003.  His operative report is attached herewith as Exhibit “14”.

Prior to discovery of the altered documents, the undersigned counsel was contacted by counsel for defendants who expressed doubt concerning the origin of the fracture.  She pointed to the fact that Dr. Henry’s notes were unclear on whether the fracture was acute.  Because of this, the undersigned wrote to Dr. Henry for clarification.  His letter/report in response is attached herewith as Exhibit “15”.  Dr. Henry describes the hip fracture as acute and resulting from the fall.  Attached herewith as Exhibit “16” is the pathology report for the hip surgery.  It also describes the fracture as acute.  Finally, the discharge summary for this hospital stay is attached herewith as Exhibit “17”.  Ms. B “did good during her stay” for her total hip replacement.  She was discharged in good and stable condition on July 18, 2003.  As a segue into the next section of this paper, the panel should note that there was no toe infection during her hospital stay.

THE TOE INFECTION

Following her hip surgery and hospital course, Ms. B was admitted back to Evangeline Oaks Guest  House on July 18, 2003.  As part of their readmit, the nursing home completed a “Nurses’ Admission Record & Allergies Examination”.  That is attached herewith as Exhibit “18”.  This form lists the general skin condition as “good”.  A body diagram contained on the form requires the nurse completing the form to list all body marks, “such as old or recent scars, bruises or discolorations (regardless of how slight), lacerations, decubitus ulcers and other ulcerations or questionable markings considered other than normal.”  Ms. B’s body diagram on the July 18, 2003 report describes dryness to the skin and a surgical scar with slight redness.  There is no mention of an infected great toe.  There shouldn’t be.  The evidence is that the toe infection occurred some time between readmit on July 18, 2003 and a subsequent hospitalization on August 3, 2003.  Inexplicitly, however, there is no mention of the severely infected toe until after Ms. Broussard’s discharge to the hospital on August 3, 2003.  Attached herewith as Exhibit “19” are body audits performed weekly from 5/29/03 through 9/16/03.  The first mention of the infected toe comes in an audit performed August 12, 2003 after Ms. B returned from the hospital.  If this panel will refer to the nurses’ notes previously attached herewith as Exhibit 3, it will see no reference to an infected toe during the relevant time period.  Ms. B’s medication and administration record (MAR) from June 31, 2003 through October 31, 2003 is attached herewith as Exhibit “20”.  The toenail appears for the first time on the MARs at page 361 of those documents.  On August 5, 2003 a handwritten notation was made to the MAR instructing the nurses to “clean RT great toe with Burnell’s solution qd dress with 4×4 gauze and Kerlix.”  Again, this was after the infected toe had been discovered during an unrelated hospital admit August 3, 2003.

Flow sheets requiring documentation of nail care for the relevant time period are attached herewith as Exhibit “21”.  The nursing home employees checked off that they had performed nail care and pedicure each day of the relevant time period.  This is evidence of more fraudulent record keeping.  If they had been doing proper nail care, the toe infection would have been discovered.

Backing up a little bit, Ms. B was admitted to the hospital from the nursing home August 3, 2003 because of complaints of chest pain at the nursing home (Nurses’ Notes, Ex. 3, p. 224).  A copy of the history and physical for the admit to the emergency room on August 3, 2003 is attached herewith as Exhibit “22”.  It was during this admit that the severely infected toe was discovered.  A consultation with Dr. Mark Ellis was requested.  His report is attached herewith as Exhibit “23”.  His diagnosis was onychocryptosis right hallux.  He performed a partial matrixectomy of the right hallux under a local anesthesia.  The discharge summary of Dr. Jamie Cordova is attached herewith as Exhibit “24”.  Ms. Broussard was discharged back to the nursing home August 6, 2003.  Dr. Cordova notes a “suspected fissure” and that “she was found with an infection of her right hallux . . .” .  As this panel is no doubt aware, the severely infected toe did not occur in the ride from the nursing home to the hospital.  Ms. B no doubt had this condition for a long period of time.  At page 52 of his deposition, the administrator, Landreneau, explains the nursing home’s duty in reference to toenail care (Landreneau Depo. Ex. 11, P. 52).  At page 55 of his deposition and continuing through page 57 he admits, over the objection of his attorney, that if the toenail infection was not caught while Ms. B was at the nursing home, it is a breach of the duty of care.  He was questioned as follows:

“Q If you assume that an infection did start and that it wasn’t caught at your nursing home, would you agree with me, then, that the nursing home breached its duty of care to the resident?

A Well, I have to – assuming that, yes.”  (Landreneau Depo., Ex. 11, P. 57).

LPN Ryder made the same admission,

“Q Assume that absolutely nothing was charted in the medical records for Ms. Broussard prior to her admit to the hospital where they discovered she had an infected toenail that needed surgery.  Assuming that is correct, that there was nothing in the chart, would you agree with me that the nursing home should have found that before that admit?

A Much to my distaste, yes, I would have to agree.”  (Ryder Depo., Ex. 9, P. 34).

In reference to the toe, there is once again evidence that the nursing home tried to cover its tracks by altering its records.  Referring to the nurses’ notes (Ex. 3), and specifically, page 224, the panel will note that there is a nurse’s entry for 8/3/03 at 7:30 p.m. which reads, “Admitted to OLOL.  No diagnosis given.”  Directly under this notation someone later wrote an entry also for 8/3/03, but that entry does not contain a time.  It reads “TXP.  Started to right big toe skin tear _______ per standing orders.”  Obviously, treatment to the big toe could not have started August 3, 2003 after Ms. B had already been admitted to the hospital.  As is customary, the hospital no doubt called the nursing home back and advised that they were admitting Ms. B because of a toe infection.  Someone then went back and attempted to alter the nurses’ notes to make it appear they were aware of the toe infection prior to her discharge.  The fraudulent notation is not signed by anyone.  In other words, the person who made the fraudulent notation did not want to be discovered.

Ms. B’s “Plan of Care” from Evangeline Oaks is attached herewith as Exhibit “25”.  Under federal Medicare/Medicaid regulations for nursing homes, a detailed care plan is required.[4]  The care plan should contain all problems and potential problems that are being monitored for the particular resident.  Ms. B’s care plan contains a handwritten alteration of August 7, 2003 noting the skin breakdown to the great right toe.  This was after Ms. Broussard’s return from the hospital, August 6, 2003.  Clearly, if the toe infection had been discovered prior to the admit of August 3, 2003, it should have been mentioned in the care plan.  It was not.

This panel should also note that the care plan does not contain any mention of monitoring Ms. B for potential ulceration or skin breakdown prior to August 7, 2003.  This alone is evidence of substandard care given Ms. B’s diabetes and the immobility that would have accompanied her hip fracture July 5, 2003.  Her diabetes alone would have put her at a high risk for ulceration and skin breakdown in the lower extremities.  Naturally, circulation issues would have been compounded by the immobility brought on by the hip fracture.  This care plan failed to address the most basic needs for this particular resident.  Failure to maintain a proper care plan for a resident is a direct violation of the OBRA regulations.[5]

THE DECLINE

A hip fracture in the elderly and the resulting immobility is usually the beginning of the end.  Numerous medical studies document this phenomena.  The sepsis which resulted from the infected toe made Ms. B’s decline even more imminent.

Despite her problems with forging medical records and telling the truth, even LPN Dixon had to admit that this phenomena has been her observation.  She was questioned as follows:

“Q It appears from my review of the medical records that prior to the fall in July of 2003, apart from her wandering and the dementia that [Ms. Broussard] was doing pretty good physically.  Would you agree with that?

A Yeah.

Q After the fall and the hip fracture would you agree that Ms. B’s health declined?

A Yes, it usually does, sir.

Q You see that pattern after a hip injury in elderly patients?

A Yes.

Q And you noticed that pattern with Ms. B?

A Yes, sir.  I don’t know if it is that they give up or something, but it is like the mind just goes more and more.

Q The immobility has a big effect on them.

A Something.  Not to be ugly, but most of the time they do die.”  (Dixon Depo., Ex. 5, P. 37-38).

Attached herewith as Exhibit “26” in globo are both the history and physical and discharge summary for a subsequent visit to Our Lady of Lourdes on September 6, 2003.  The primary reason for admit was the right great toe infection.

On September 8^th Ms. B returned to the hospital again after suffering a syncopal episode while at the podiatrist.  The consultation report of Dr. Jeffery Chen and the emergency room record of Dr. Robert Colligan are attached herewith as Exhibit “27” in globo.  Dr. Chen notes that Ms. Broussard has been treated for gangrene of the left big toe.  Dr. Colligan notes that Ms. B was at the podiatrist office for debridement and treatment of a necrotic toe when she suffered an unresponsive episode.

Ms. B returned to defendant’s facility for a couple of weeks but required yet again another admit to Our Lady of Lourdes on September 24, 2003.  This one lasted until October 8, 2003.  The consult of Dr. Mark Ellis and the discharge of Dr. Hector Robles are attached herewith as Exhibit “28” in globo.  Dr. Ellis noted gangrene, left great toe.  Dr. Robles noted the same.

Two days after returning to the nursing home, Ms. B was sent back to the hospital one last time, October 10, 2003.  The history and physical of Dr. John Daigre and discharge summary of Dr. Robles are attached herewith as Exhibit “29” in globo.  Dr. Daigre notes that she was transferred to hospice October 15, 2003.

A death/discharge summary was apparently never done but attached as Exhibit “30” in globo is a final diagnosis summary and postmortem release form confirming Ms. B’s death October 27, 2003.  The death certificate is attached herewith as Exhibit “31” confirming the cause of death as (a) sepsis, and (b) congestive heart failure.

BREACH OF THE STANDARD OF CARE

Nursing homes are heavily regulated by both state and federal law.  These laws establish the appropriate standard of care for nursing home conduct on many issues.  Both accidents/falls and the prevention/treatment of skin infections are specifically addressed.  The federal act covering nursing homes is found in the Omnibus Budget Reconciliation Act (OBRA).  The administrator for Evangeline Oaks, was specifically asked about the OBRA regulations in his deposition at page 10:

“Q The Medicare certification requires that you follow the federal rules and regulations under OBRA; is that correct?

A Yes, sir.

Q Those rules and regulations set the standard of care for a Medicare-certified nursing home?

A Yes, sir.”  (Landreneau Depo., Ex. 11, P. 10).

In reference to the elopement and fall, “The facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents.  The facility must ensure that the resident environment remains as free of accident hazards as possible.  ‘Accident hazards’ are defined as equipment or devices that are defective, poorly maintained or not used in accordance with the manufacturer’s specifications.”  (OBRA reg. 42 CFR § 483.25(h)).[6]  This federal regulation sets out the nursing home’s duty to “supervise” and to provide “assistance devices” to prevent accidents.  In the case of Ms. B, this would include the duty to supervise her so that the elopement does not occur and to provide a functioning wander guard system.  This federal regulation simply spells out what should be common sense.  This panel should be able to reach its own conclusion that when a nursing home allows one of its residents to elope, fall and fracture her hip, it has breached the standard of care.

Undersigned counsel referred earlier to the very poorly drafted care plan Evangeline Oaks maintained for Ms. B.  This lack of planning is at the root of their failure to provide adequate care.  OBRA regulations regarding care plans are found at 42 CFR § 483.20(k).  It reads as follows:

“The nursing home must develop a comprehensive care plan for each resident that includes objectives and timetables to meet their residents’ medical, nursing and mental and psychosocial needs that are identified in the comprehensive assessment.  The care plan must describe the following – (i) the services to be furnished to attain or maintain the resident’s highest practicable physical, mental and psychosocial well-being as required; and (ii) any services that would otherwise be required under § 483.25 but are not provided due to the resident’s exercise of rights under § 483.10 including the right to refuse treatment under § 483.10(b)4.”

§ 483.20(k)(1) lists specific “probes” used to determine whether a nursing home is meeting its requirements of a properly constructed care plan.  These are as follows:

• Does the care plan address the needs, strengths and preferences identified in the comprehensive resident assessment?

• Is the care plan oriented towards preventing avoidable declines and functioning or functional levels? 

• How does the care plan attempt to manage risk factors?

• Does the care plan build on resident strengths?

• Does the care plan reflect standards of current professional practice?

• Do treatment objectives have measurable outcomes?

• Corroborate information regarding the resident’s goals and wishes for treatment in the care plan by interviewing residents, especially those identified as refusing treatment.

• Determine whether the facility has provided adequate information to the resident so that the resident was able to make an informed choice regarding treatment.

• If the resident has refused treatment, does the care plan reflect the facility’s effort to find alternative means to address the problem?

Compare these standards to the care plan Evangeline Oaks maintained for Ms. Broussard (Ex. 25).  These federal standards contemplate a care plan which (1) identifies potential problems; (2) sets out a plan to address those problems; and (3) evaluates the outcome of that plan.  Clearly, the care plan in place for Ms. B did not meet any of these standards.  More importantly, the information that was in the care plan was not being disseminated to the nursing home employees.  LPN Dixon, the nurse in charge of Ms. B’s care and in charge of directing the CNAs, testified that she never reviewed Ms. B’s care plan (Dixon Depo., Ex. 5, P. 31).  Further, Dixon testified that the care plan was never discussed with the CNAs (Dixon Depo., Ex. 5, P. 32).  The LPNs and CNAs are the frontline caregivers for the residents.  They are obviously not meeting the standard of care as set out in the OBRA regulations when they don’t even know what’s contained in the care plan.  Federal law specifically requires that the nursing home’s aides “. . .are able to demonstrate competency in the skills and techniques necessary to care for the residents, as identified in the residents’ assessments and described in the plan of care.”  (42 CFR § 483.75(f).

The OBRA regulation concerning skin infections/ulcerations is found in 42 CFR § 483.25(f)(1)(f)(314).  This regulation provides guidance to surveyors in determining whether a nursing home has breached the applicable regulations.  If an ulceration is discovered, determination of nursing home compliance in meeting the standards is as follows:

“For this resident, the pressure sore/ulcer is unavoidable if the facility properly assessed, care plan, implemented the care plan, evaluated resident outcome and revised the care plan as needed.  If not, the pressure sore/ulcer is avoidable.”

Breaking this regulation down into its basic parts, this panel will note that a nursing home must:  (1) care plan; (2) implement the care plan; (3) evaluate the resident outcome; (4) revise the care plan as needed.  As was addressed earlier, Ms. B’s preexisting diabetes, and the immobility brought on by her fall put her at a very high risk for skin breakdown, particularly in the extremities.  Ms. B’s care plan does not address the issue of skin breakdown until July 30, 2003.  This was two weeks after her return from the hospital after hip surgery.  Skin breakdown for the great right toe is not addressed until August 7, 2003 which is after the toe had already been discovered during the emergency room visit of August 3, 2003.  The use of preventative measures with regard to the feet is never discussed.  The issue of infection was not addressed until after its discovery.

Again, these federal regulations merely codify what should be common sense.  However, if this panel needs more evidence of this nursing home’s negligence, it can be found in the facility’s own policy and procedure manual.  Attached herewith as Exhibit “32” is a copy of the page from the nursing home’s policy and procedure manual titled “Wander Guard Policy”.  That policy calls for routine checks of the Wander Guard equipment and documentation of same.  Defendants have been unable to produce the documentation called for in their own policy.

Attached herewith as Exhibit “33” are the policy and procedures for “nails, cleaning, trimming”.  This procedure calls for a very detailed care and inspection of the nails on a daily basis.  Obviously, if this policy and procedure had been carried out, the nursing home would have discovered Ms. Broussard’s toe infection before she left their facility.  Therefore, the nursing home was in breach of its own standards regarding that issue.

This panel may be familiar with Evangeline Oaks from its recent media attention.  It has been in the news lately because one of its residents was allegedly raped by an employee.  As this evidence suggests, Ms. Broussard was not the only resident to fall victim to the lack of supervision at this nursing home.  State surveys for Evangeline Oaks Guest House bear this out as well.  Attached herewith as Exhibit “34” are the state surveys for Evangeline Oaks Guest House as of March 19, 2004.  The panel will note that Evangeline Oaks was cited with a total of 26 deficiencies.  This is an atrociously high number of deficiencies given that the average number of deficiencies for nursing homes in the United States is 7.  This panel can read the survey for itself, but it will see that many of the deficiencies deal with the issues present in this case.  Evangeline Oaks also lags far behind both the state and national average in adequate staffing.  This section of the survey is titled “Nursing Staff Hours Per Resident Per Day”.

ANTICIPATED DEFENSE

Plaintiffs anticipate that the nursing home will have excuses or defenses to its substandard care.  These typically fall into two categories:  (1) they blame the resident, and (2) they blame someone else.  In this case, it is anticipated that Evangeline Oaks will try to blame Ms. Broussard for her own accident and injuries.  As was mentioned previously, it is also anticipated that the nursing home will claim the fracture did not occur during the elopement and that it was “spontaneous”.[7]  The nursing home will point to the fact that at the time Ms. Broussard was found outside the facility, Acadian Ambulance was called and did an assessment.  Plaintiffs must concede that for whatever reason, Ms. B’s hip fracture was not found by the ambulance personnel.  This panel has been provided with enough evidence to show that this was merely an oversight.  By LPN Dixon’s own admission, Ms. B “jumped” and she knew right away there was a fractured hip just thirty minutes after returning to the facility.  Plaintiffs would also remind this panel of the doctors’ testimony, both Henry and the pathologist, which verified the fracture was acute.

CONCLUSION

Plaintiffs have presented this panel with overwhelming evidence in their favor and request a decision which finds the following:

1)             Evangeline Oaks breached the standard of care in failing to prevent Ms. B’s elopement/fall and she suffered a fractured hip as a result;

2)             Evangeline Oaks failed to prevent/discover/properly treat an infection to Ms. Broussard’s great toe and she suffered sepsis as a result, eventually causing her death;

3)             Evangeline Oaks fraudulently altered Ms. B’s medical records.

This is Ms. B’s story.  Her life, albeit long, ended early and her last days were filled with pain and suffering as a result of the carelessness of this nursing home.  A nursing home which treated her death through its alteration of her medical records in the same cold and careless manner it treated her life.  Hopefully, Ms. B’s story will not fall on deaf ears.  Hopefully, this panel will not join this nursing home in perpetuating the injustice both Ms. B and her family have endured.

RESPECTFULLY SUBMITTED,

GUILLIOT & ST. PÉ

(A Professional Law Corporation)

________________________________

KENNETH D. ST. PÉ

La. Bar Roll No. 22638

428 Jefferson Street

P.O. Box 2877

Lafayette, Louisiana 70502

(337) 232-8177