Punitive Damages Are Awarded Against Nursing Home

Pharmacy Times, March 2020, Volume 88, Issue 3

Unauthorized change in medication Is the subject of a case involving the death of an elderly patient.

ISSUE OF THE CASE

An elderly patient was admitted to a nursing home, which allegedly violated a number of guarantees and protections put in place by the state’s regulatory framework for operating such a facility. Following admission, he was subjected to an unauthorized change in medication, which led to his death. Given the circumstances presented in the case, should an award of punitive damages be upheld on appeal?

FACTS OF THE CASE

The patient had suffered a stroke that left him unable to manage his medications. His family had concerns that his wife was overmedicating him, so they arranged for 24-hour nursing care along with family assistance until that combination proved to be insufficient. The decision was made to admit him to a local long-term care facility.

From the outset, there was confusion among the staff members at the facility about the patient’s primary care provider and also about who could provide an accurate list of the patient’s medications. He had been seeing both a private practitioner in the community and a physician at the local Veterans Administration (VA) health care center. Two differing, outdated medication lists were received from 2 different physicians, and yet another came from a rehabilitation center where the patient had received treatment after his stroke.

At the time of admission, the patient was having his diabetes managed by medications prescribed by the physician at the VA facility. He was using a long-acting insulin as well as a rapid-acting insulin.

From there the record becomes contentious, with the direct-care nurse having one recollection of the facts and a nurse practitioner (NP), who was alleged to have ordered changes in medication over the phone, advancing a different recollection. The patient was never seen or evaluated by an NP or a physician. His blood sugar levels fluctuated. Patient care notes and the testimony of the direct-care nurse were unclear as to whether the patient had received glucagon or glucose. Very significant changes were made to his insulin and oral, solid diabetes medication dosages. As matters unfolded, the patient’s condition declined, resulting in a call to emergency services. The patient was transported to the hospital, where he died the next day.

The family filed a lawsuit against the facility and its corporate parents alleging negligence. Following the trial, the jury awarded compensatory damages and included an award of punitive damages of $100,000. The facility appealed, arguing that there was insufficient basis for an assessment of punitive damages.

THE RULING

The state court of appeals affirmed the punitive damages award, finding that it was appropriate and not excessive.

THE COURT’S REASONING

The appellate court concluded that there was sufficient evidence to support the punitive damages award. These differ from the more commonly encountered compensatory damages, which are measured to compensate an injured party for loss. Because punitive damages are assigned as a punishment to the defendant, they cannot be paid by the firm’s liability insurance policy and must be paid directly by the defendant firm.

What made the court of appeals conclude that this relatively unusual award of punitive damages was appropriate? First, the court pointed to evidence that, when he was admitted, the patient was unable to walk on his own and unable to administer his own medication. Both criteria were required by state regulations for admission to a “personal care home,” as was the case here. Second, the patient was admitted without a physician’s order or without having an assessment carried out by a physician. Third, his care plan was incomplete because it did not contain information about which diet he should follow to manage his diabetes. Fourth, the drastic change in the patient’s insulin medication should have alerted his direct-care nurse to look into the matter, but that did not happen. Finally, the facility did not pursue having the patient medically evaluated, though he had experienced a hypoglycemic episode after the change in his medication. Assessing the cumulative impact of these missteps, the state court of appeals affirmed the award of punitive damages in the case.

The court found that a 4-pronged standard applied: (1) Was the harm physical rather than economic? Yes. (2) Did the conduct show evidence of indifference to or reckless disregard for the health or safety of others? Yes. (3) Did the conduct involve repeated actions rather than being an isolated incident? Yes. (4) Did the harm result from intentional deceit, malice, or trickery, or was it an accident? Yes, the facility promised a level of care that it was not able or licensed to provide.

The court concluded that “the evidence of the degree of reprehensibility of the facility was substantial.”

Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.