CASE STUDY

Strategic resolution of a factually inflammatory case, before discovery reveals additional vulnerabilities, is a standard part of HealthCap’s “best practice” claim handling. 

Resident John Doe was a very ill, 68-year old male with blindness, contractures and the inability to walk.  He had been on hospice nearly two years.  His four-year residency was essentially unremarkable until the event in question.   

Frustrated and “sick and tired” of cleaning up John’s diarrhea, an employed male CNA stuffed as many as ten wet wipes into John’s rectum.  Upon discovery 5 hours after the CNA’s shift ended, John was sent to the hospital and the police were called.  Graphic photos were taken.  John returned to the facility after a night in the hospital. He died six weeks later from cerebral atherosclerosis, atrial fibrillation and a cerebrovascular accident (stroke). 

The police arrested the CNA and the District Attorney charged him with felony elder abuse. The facility terminated his employment.  A complaint survey was conducted which resulted in the issuance of two ‘immediate jeopardy’ (IJ) tags and a fine.  The police detective’s investigative file contained negative statements from the hospital physician. The physician claimed the facility failed the patient and there was a pattern of neglect. Pressure ulcers were noted and the physician stated that the patient’s death was partially caused by a lack of care.   

Denise Siegel was the assigned HealthCap/Hamlin & Burton Litigation Manager. Denise’s immediate investigation revealed the CNA had a prior criminal history (DUI and possession of marijuana) that was not discovered by the facility in its employment background check.  Additionally, the CNA was previously fired by the facility for having marijuana and a pipe hidden in a resident’s room for his personal use.  The facility’s personnel records stated that the CNA was not eligible for rehire.  Despite this fact, the facility rehired the CNA eleven months later.   

Denise assessed this case as one of potential: liability, abuse and violation of resident’s rights.  There was potential exposure for punitive damages.  Fully litigating this case would have been risky.  Our plan of strategic/proactive resolution was only reinforced by discovery of the aforesaid hiring issues.  

While there was an applicable cap of $350,000 on non-economic damages in this state (since deemed unconstitutional) the cap would not have applied to a case of gross negligence, intentional act or wrongful death.  

During pre-suit, claimant counsel alleged negligence, gross negligence, intentional act, elder abuse and negligent hiring.  

Denise set up an in-person pre-suit mediation.  Face to face mediation creates a forum to effectively employ HealthCap’s experience and expertise in strategic negotiations and increases the likelihood of successful resolution.  Importantly, while in pre-suit status, the CNA’s personnel record remained undiscovered.  This gave Denise an informational advantage during negotiations.  The initial demand at mediation was $625,000 while the initial offer was $25,000.  The case settled for $250,000. 

This outcome was achieved without discovery and protracted litigation and was an excellent result for HealthCap and its member-owners.

HealthCap’s expertise, experience and philosophy allowed for early intervention and proactive resolution of this claim.  HealthCap members have fewer claims and experience half of the industry average claim severity.