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Announcements - Fudge & McArthur, P.A.


Fudge & McArthur, P.A.'s Donna Fudge and Tara Zimmerman are pleased to announce that they successfully defended Emeritus Corporation in a December 2012 Jury Trial in Iowa.

Defense Verdict in Iowa Long Term Care Jury Trial

Doug Lane, as representative of the Estate of Robert Lane, brought suit against Emeritus, d/b/a Silver Pines, in relation to Robert Lane's residency at the Silver Pines residential care facility from February 2004 through April 9, 2006. The Petition filed by Plaintiff alleged three counts against Silver Pines: (1) Negligence, Gross Negligence and Recklessness, which included a claim for punitive damages and loss of consortium; (2) Breach of Contract; and (3) Dependent Adult Abuse. Throughout the course of the five day trial, Plaintiff dropped his claim for Breach of Contract and Dependent Adult Abuse, leaving only the negligence claims with punitive damages and loss of consortium.

The basis of Plaintiff's claims were narrowed to the final 3 1/2 months that Mr. Lane was a resident, December 24, 2005 through April 9, 2006. Plaintiff alleged that his father lost approximately 50 lbs. during that very short time frame. Plaintiff alleged that Silver Pines caregivers failed to report this weight loss to the treating physician, Dr. Trautman, as well as to Robert Lane's son, Doug Lane. There was in fact no entry in either the Silver Pines chart or Dr. Trautman's records evidencing that Silver Pines had notified Dr. Trautman of any weight loss. Plaintiff claimed that his father became malnourished, had black, tarry stools indicating significant internal bleeding and later contracted community acquired pneumonia as a result of his malnourishment and weakened condition, which led to his death. Plaintiff also claimed that Robert Lane required a higher level of care than Silver Pines was permitted by Iowa's Residential Care Facility law to provide.

In addition, the Iowa State Surveyors investigated the son's allegations and issued a state survey report that cited the facility for failing to document in the resident's chart the weight loss interventions that were implemented and for allowing Mr. Lane to remain in the residential care facility despite having leg ulcers that the state claimed disqualified him for continued residency in an Iowa residential care facility.

Lastly, the Plaintiff argued that the company put "profits over people" and needed to be punished for its alleged lack of response to Mr. Lane's excessive weight loss and physical decline.

Defense Experts - Dr. Robert Bender (Des Moines, Iowa) and Pat Giorgio (Cedar Rapids, Iowa):

(1) Dr. Bender: The defense's focus in this case was Robert Lane's underlying co-morbidities which contributed to his weight loss, including Lasix for edema, lymphoma of the stomach and bleeding stomach ulcers. Defendant retained Dr. Bender as its medical expert. Dr. Bender was an excellent witness, and clearly pointed out for the jury how Robert Lane's underlying conditions accounted for the weight loss. He also testified to the numerous notifications given by the caregivers at Silver Pines to Dr. Trautman regarding significant changes in Mr. Lane's condition. He testified that the caregivers also followed Dr. Trautman's two weight orders; one for monthly weights and one for weights every other day for one week. In the final month of Mr. Lane's residency, the caregivers reported a 6 lb. weight loss over a 6 day period of time to Dr. Trautman.

Dr. Trautman issued no new order and instead sent a response back to the caregivers saying, "Ok." Mr. Lane was on Lasix at that specific time for bilateral 2+ pitting leg edema, and thus weight loss was the anticipated goal. Dr. Bender identified areas in Dr. Trautman's records wherein Mr. Lane refused testing and treatment for any of his underlying stomach conditions. Finally, Dr. Bender testified to the interventions taken by Silver Pines to address Mr. Lane's weight loss, including adding a sandwich and bedtime snack and moving Mr. Lane's room closer to the dining room. Dr. Bender opined that these interventions were appropriate and at no time did Mr. Lane require a transfer to a higher level of care facility.

(2) Pat Giorgio: The defense also retained Pat Giorgio, the owner of several Resident Care Facilities in Iowa. Ms. Giorgio testified that the caregivers at Silver Pines followed the regulations applicable to Residential Care Facilities in Chapter 57 of the Iowa Code, as well as Silver Pines' internal policies and procedures. Ms. Giorgio also opined that the caregivers at Silver Pines met the standard of care regarding weight loss interventions (even though not all such interventions were reduced to a written entry in the chart) and notifications to Mr. Lane's physicians. Finally, Ms. Giorgio testified that Mr. Lane remained appropriate for residency at a residential care facility throughout his entire stay at Silver Pines, and did not require a higher level of care. Specifically, Ms. Giorgio pointed out that Iowa's Residential Care Facility Chapter 57 regulations expressly allow for dressings and decubitus ulcers, thus proving that the State Surveyor was simply mistaken in her conclusion that Mr. Lane's leg ulcers disqualified him from continued residency.

Trial Team: Donna Fudge and Tara Zimmerman of Fudge & McArthur, P.A. were lead trial counsel. Bethany Wharrie, Esq. and Amy Bozarth of Fudge & McArthur, P.A. and Ken Watkins, Esq. of Davis Brown Law Firm assisted in the trial.

Verdict: Following the five (5) day jury trial, after a very short deliberation, the jury returned a unanimous verdict for the defense. Post Verdict discussions with the Jurors (which is allowed under Iowa law), revealed that Jurors believed Emeritus Caregivers did a good job in their care and treatment of Mr. Lane.