Nursing Home Case and Consent to Hospice Care

August 24th, 2017 by Rieders Travis in Nursing Home Abuse

Crew v. Penn Presbyterian Med. Ctr., 2017 Phila. Ct. Com. Pl. LEXIS 188 (June 30, 2017) Lachman, J. On March 16, 2012, the Plaintiffs Decedent Essie Crew was admitted to Park Pleasant Health Care Facility for nursing care, rehabilitation, physical, occupational, and speech therapy. At the time of her admission, a Park Pleasant nurse noted that Ms. Crew’s skin was intact. Around April 23, 2012, Ms. Crew began to experience a loss of skin integrity. On or before May 10, 2012, Ms. Crew developed sacral wounds, bilateral contractures of her upper and lower extremities, and urinary tract infections.

Trial began on October 14, 2016, and the jury delivered its verdict on October 27, 2016. The jury found that Penn Hospice was not negligent and did not answer the causation or damages questions on the verdict slip.

Plaintiff filed a timely post-trial motion (PTM) challenging Judge Ceisler’s grant of summary judgment and various alleged trial errors committed by the trial judge. The trial judge limited her review of the PTM to the alleged trial errors.

The trial judge denied the PTM and entered judgment on the jury’s verdict on February 15, 2017. Plaintiff filed a timely notice of appeal and a timely Pa.R.A.P. 1925(b) Statement of Errors after being ordered to do so by the trial judge.

Plaintiff’s PTM contended that it was error to permit the defendants to introduce the July 6, 2012 “Consent for Hospice Care” form signed by Plaintiff David Crew authorizing Ms. Crew’s admission to Penn Hospice. Pltf’s Ex A. Plaintiff says that this form was really an “informed consent” form, the admission of which is barred in non-informed-consent cases by Brady v. Urbas, 631 Pa. 329, 111 A.3d 1155 (2015).

The “Consent to Hospice Care” form has no relation to an “informed consent” form because it does not identify the risks of a proposed surgical procedure. On the contrary, it states that “I understand the nature of the hospice care available and am aware that all treatment will be palliative rather than curative in nature. Treatment will be for the management of symptoms and to provide comfort for my terminal illness of dementia.” (Emphasis added.) No surgical procedures were contemplated by the hospice; indeed, no treatment of any type other than palliative was contemplated. “Palliative” means “relieving or soothing the symptoms of a disease or disorder without effecting a cure.” American Heritage Medical Dictionary at 387 (2008) (emphasis added).

Furthermore, Plaintiff’s attorney opened the door to the introduction of the Consent for Hospice Care form by stating in her opening statement that Ms. Crew’s family “wanted their mother to live. That was their intention. They were not taking her to Penn to pass away.” Defendant’s PTM brief at p. 16, citing NT 10/18/16 pp. 78-79.

There was no error or abuse of discretion in allowing the introduction of the Consent to Hospice Care form at trial.

The court did not abuse its discretion in preventing Dr. Starer from testifying regarding the failure to provide nutrition or hydration.

Plaintiff did not demonstrate any prejudice from the court’s rulings because Dr. Starer was permitted to inform the jury and explain how the lack of nutrition and hydration contributed to Ms. Crew’s death. The jury heard that the harm Ms. Crew suffered by the loss of skin integrity caused her to die because she “could not sustain her nutritional status.” This issue is without merit.

It was not an abuse of discretion to allow the defendants to cross-examine plaintiff’s expert on his opinions in his written report, that the negligence of a co-defendant who settled with the plaintiff contributed to Ms. Crew’s death.

Even were this issue not waived, it still is without merit. The trial court correctly ruled that Dr. Starer could be cross-examined about the opinions in his reports that established the liability of the Park Pleasant Nursing Home defendants. The Superior Court approved a non-settling defendant’s use of the testimony of the plaintiff’s expert to establish that the settling defendant bore some responsibility for the plaintiff’s injuries, in Herbert v. Parkview Hosp., 2004 PA Super 287, 854 A.2d 1285, 1290-1291.

Without question, cross-examination of Plaintiffs medical experts with respect to the entirety of their opinions as expressed in their expert reports was permissible for impeachment purposes: the manner in which Plaintiff sought to limit the testimony of her medical experts in her case-in-chief would otherwise have been skewed and given the false impression that these experts were of the opinion that the Non—Settling Defendants alone were responsible for Decedent’s death.

The Non—Settling Defendants had every right to point the finger and elicit evidence through Plaintiffs experts that the cause of Decedent’s death was not the failure by Dr. Lesitsky to immediately refer Decedent to the emergency room for a physical evaluation or any delay in Dr. Chaudhry’s neurological consult or treatment—the Non—Settling Defendants’ experts being of the opinion that Decedent would have ultimately fully recovered from his stroke—but [for] the failure to provide DVT prophylaxis once Decedent was admitted to the Hospital, for which the Non—Settling Doctors argued they were not responsible.

Moreover, this evidence was also admissible to prove the substantive liability of the Settling Defendants.

In the present case, the Penn defendants had “every right” to cross-examine Dr. Starer regarding all of the opinions expressed in his expert reports for impeachment purposes and as substantive evidence. As in Stang, the manner in which Plaintiff sought to limit the testimony of his medical experts in his case-in-chief would otherwise have been skewed and given the false impression that Dr. Starer was of the opinion that Penn Hospice at Rittenhouse alone was responsible for Plaintiff’s decedent’s death. Id.

The trial court did not abuse its discretion in excluding unidentified “federal and state laws, regulations and guidelines.”  Plaintiff claims that “the trial court erred in not permitting the contents of federal and state laws, regulations and guidelines to be used at trial.” A fundamental problem with this issue is that the Plaintiff’s PTM and brief failed to identify the specific “federal and state laws, regulations and guidelines” he claims were improperly excluded. Plaintiff cited to “Federal Hospice Regulations, 42 CFR 418,” without identifying to which of the fifty-seven individual regulations he was referring. Plaintiff mentioned the thousand-page federal Omnibus Budget Reconciliation Act of 1987 (OBRA) and “OBRA regulations,” without providing a citation for the act or the regulations, and without citing to a specific section of the act or regulations. His PTM filings did not mention any state laws or regulations, or “guidelines” of any sort.

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