Oklahoma Appeals Court Upholds Judgment for Family of Veteran Who Died of Neglect - Lounds v. State


August 30, 2011

As a Pennsylvania nursing home lawyer, I know that keeping nursing home patients hydrated can be more difficult than it might sound. Older people can lose their sense of thirst, and some patients are disabled enough to need help with the mechanics of drinking. For these reasons, doctors advise caregivers that it's absolutely vital for patients to drink a certain amount of fluids per day -- but some nursing homes are too understaffed or uncaring to follow through. That was the allegation in Lounds v. State ex rel. Department of Veterans Affairs, a decision from the Oklahoma Court of Appeals. Lula Lounds sued the state-run nursing home where her father, David Shelton, died of causes including dehydration leading to kidney failure. The state raised issues on appeal including an alleged failure by Lounds to explain Shelton's care, but the court upheld a verdict for Lounds.

Shelton was 93 when he was admitted to the Norman Veterans Center, which is run by the Oklahoma Department of Veterans Affairs. The record does not show what medical conditions he had, but notes that he was supposed to be taking a diuretic and receiving at least 1,500 cubic centimeters of fluids per day. The record does show that the jury decided the center failed to provide that care. Just three weeks after his admission, Shelton had lost 20 percent of his body weight, and shortly died of congestive heart failure and acute renal failure caused by dehydration. At trial, evidence was introduced showing that the center failed to monitor Shelton's hydration, failed to respond to concerns raised by his family and did not follow its own policies. Lounds told the court she had not informed the center that her father was not taking a full dose of a diuretic, but said she never got a chance because an intake interview was promised but never completed. The center unsuccessfully moved to exclude testimony from her expert, Dr. Kaveh Kermanshahi, on the grounds that he is not a full-time nursing home doctor. Ultimately, the jury awarded $175,000 to Lounds, and found that more money was warranted although a tort awards cap made that impossible.

On appeal, the center argued that evidence for the verdict was insufficient and also that the trial court erred by admitting Kermanshahi's testimony. The center did not dispute the cause of death, but said Lounds failed to establish the standard of care she alleged the center did not meet. The appeals court disagreed. Lounds established a common-law standard of care in part through Kermanshahi, who the court said was clearly qualified as an expert. Furthermore, the center's medical director admitted in court that the center's care was not up to standards. Lounds also satisfactorily proved an alternative theory of statutory negligence under federal Medicare, Medicaid and veterans' laws that set standards for homes that take federal money. Finally, it dismissed the argument that $175,000 was an excessive award, noting that the money covers both funeral expenses and damages for the emotional pain of the family members.

In fact, the award seems rather small to me as a Philadelphia injury lawyer, given the damages cap. It's difficult to put a value on a person's life, but the award in question is designed not only to compensate his family, but also deter wrongdoing by the nursing home. In this case, the nursing home essentially admitted wrongdoing, but was prevented from facing higher damages by a damages cap -- even though the jury expressly said it would have awarded more. This may be public policy in Oklahoma, but I do not believe it is enough to deter Pennsylvania nursing home abuse. As a Philadelphia medical malpractice lawyer, I hope nursing homes in our state are paying better attention to the basic needs of their residents.

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