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Estate of Burnett v. Water's Edge Convalescent Center

July 25, 2008

ESTATE OF MADELINE F. BURNETT, BY AND THROUGH HER ADMINISTRATRIX AD PROSEQUENDUM, MARY J. KELLY, PLAINTIFF-APPELLANT,
v.
WATER'S EDGE CONVALESCENT CENTER AND LLMD ASSOCIATES, INC. D/B/A WATER'S EDGE NURSING AND REHABILITATION CENTER, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2896-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 13, 2008

Before Judges Cuff, Simonelli and King.

Plaintiff, Mary J. Kelly, representing the estate of Madeline F. Burnett (decedent or Burnett),*fn1 appeals from the April 18, 2007 denial of a motion for reconsideration of an order of the Law Division of March 2, 2007 granting summary judgment to defendants Water's Edge Convalescent Center and LLMD Associates (collectively, Water's Edge). Burnett, an elderly woman, was a resident at the Water's Edge Nursing and Rehabilitation Center in Trenton for less than two years. The estate sued to recover damages for her fractured right heel area and for other physical injuries arising from her "abuse and neglect."

We conclude that the estate demonstrates a genuine issue of material fact on the right heel injury. We reverse and remand in part on that aspect of plaintiff's claim. On the other injury claims, we affirm the summary judgment for defendants.

This appeal arises out of the alleged mistreatment of decedent by the physicians, nurses, and employees of Water's Edge between the date she entered the facility (October 24, 2002) and the date, shortly before her death, she left the center (August 2, 2004). The two-count complaint filed by the estate on November 8, 2004 alleged that the employees of Water's Edge deviated from the requisite standard of care. The estate alleged that this breach of duty caused the decedent to suffer "a fractured right heel; decubitous pressure ulcers, unexplained severe right shoulder and chest swelling, bruising and inflammation, possibly indicating the presence of a dislocation or fracture, sepsis, numerous skin tears, lacerations, dehydration, infections, unsanitary living conditions and poor hygiene care." The estate sought compensation for decedent's economic and non-economic injuries under both general negligence principles and the applicable statutory sections of the New Jersey Nursing Home Responsibilities and Rights of Residents Act, N.J.S.A. 30:13-1 to 30:13-17.

Decedent, age eighty-four, entered Water's Edge on October 24, 2002, with a significant medical history. She suffered from diabetes, hypertension, chronic obstructive pulmonary disease, congestive heart failure, mitral valve regurgitation, aortic valve insufficiency, osteoperosis, gout, a penicillin allergy, degenerative joint disease, and Parkinson's disease. She had received bilateral knee replacements, a Greenfield inferior vena cava filter, a pacemaker, and an open reduction internal fixation surgery to repair her right hip. Decedent's early stay at Water's Edge was interrupted by two trips to Capital Health System (CHS) for deep venous thrombosis clots and congestive heart failure. At the time of the first admission to CHS, decedent demonstrated a rash at the groin and buttock areas. When she again returned to CHS, she exhibited a stage I decubitus ulcer. Upon her return to Water's Edge, she was "full weight bearing with standard walker with minimal assistance." She had red marks on her heels and sacrum. Water's Edge then chose to implement an ambulation regimen.

The deposition of one of Water's Edge workers, Sue Holt, describes the difficulty with which decedent ambulated in late December 2002. Holt agreed that the use of one aide on each side of decedent to support her under the armpits, while a third aide pushed a wheelchair behind decedent, was a common practice at Water's Edge. She read an office note from December 31, 2002 which stated "[decedent] ambulated approximately eight feet, with great difficulty; became extremely fatigued and shaking, after eight feet. [Decedent] stated I can't go any more. It is clear to this worker that ambulation is very difficult for [decedent]." The Water's Edge "Restorative Nursing Flow Sheet" from this period supports this assessment of decedent's capabilities. However, contrary to the above note, the flow sheet indicates decedent did not receive restorative therapy on December 31.

The flow sheet suggests a marked improvement in decedent's strength in 2003. It shows that decedent was able to ambulate a distance of sixty feet on January 10, 2003. There was no restorative therapy on January 11 and 12; decedent refused to participate in therapy on January 13. This was because of the alleged occurrence of the central event in this appeal. Decedent complained to one of the nurses on the afternoon of January 13 that she was bumped on her right heel the day before by the wheelchair pushed behind her. The heel was swollen, bruised, and tender upon examination. The facility scheduled an x-ray. An employee called decedent's daughter, Mary Kelly, to tell her about the incident. This information was noted in decedent's progress notes.

Kelly testified during her deposition that someone from the facility informed her that "one of the aides had hit [decedent] in the back of the heel with the wheelchair." The employee allegedly stated "that it was an accident and somebody had run into her with a wheelchair." Decedent shared the same information with Kelly, but did not identify the aide.

The x-ray revealed an acute fracture of the posterior calcaneus with diastasis. An orthopedic consult on the following day revealed pain upon palpation and difficulty in motion, and an avulsion fracture involving decedent's Achilles tendon. The orthopedist placed a compress wrap on decedent's right foot. Decedent apparently informed a nurse practitioner of the incident as well. During the next week, decedent received pain medication but refrained from additional therapy.

Decedent resumed ambulation therapy on January 22, 2003 but the pain in her right heel continued and a stage II pressure ulcer developed. Water's Edge cared for the wound, which healed by the end of February. The heel fracture healed by the time of a March 17, 2003 radiographic examination, but decedent complained of minimal continued pain. In her expert report, Nurse Bonnie Tadrick concluded "[t]o within a reasonable degree of nursing certainty, the staff at Water's Edge Nursing Home failed to provide adequate supervision during restorative therapy and as a result Mrs. Burnett suffered a fractured right heel secondary to a wheelchair making contact with her right heel. . . . [S]he suffered a painful skin breakdown on her right heel; necessitating daily wound care for several weeks."

The expert report of Dr. John Kirby describes in great depth decedent's medical problems over the following one and one-half years. He noted decedent's limited mobility after the right heel fracture. She was hospitalized a number of times. She was treated for a urinary tract infection and upper respiratory tract infection on February 16, 2003 and the record reflected an old bruise over her left breast. She complained of right thigh and bilateral heel pain. She also exhibited pressure ulcers on both feet and a stage I sacral pressure ulcer.

A bone scan ordered on February 24, 2003 revealed an acute fracture of the twelfth thoracic vertebral body and fractures of the anterior ends of multiple ribs. Decedent suffered an acute right hemispheric stroke on March 23, 2003. The stroke left decedent with weakness on her left side and a weak voice. She presented a stage I right heel decubitus at the same time.

Shortly after the stay at Robert Wood Johnson Hospital (RWJ) for the stroke, decedent began to exhibit skin tears along both arms. The Water's Edge nurse progress notes called for the cleansing of the wounds, but did not refer to the etiology of the tears. The physician notes throughout 2003 continued to refer to decubitus pressure ulcers on decedent's sacrum and coccyx, and the development of skin tears on the arms, shins and toe. She was treated for pneumonia in September 2003. There was a physician's note reflecting "several areas of healing ecchymosis on lower extremity" on December 22, 2003.

Decedent was readmitted to RWJ in March 2004 with complaints of abdominal pain. The CT scan reflected a cystic left lower quadrant mass, sigmoid colon wall thickening, and diverticulosis. The Water's Edge physician note for the following month observed a skin tear on the wrist and "scattered areas of (<2 cm)="" ecchymosis."="" decedent="" was="" treated="" at="" rwj="" again="" at="" the="" end="" of="" april="" for="" dehydration="" and="" urosepsis.="" she="" exhibited="" stage="" ii="" ulcers="" on="" her="" left="" buttock="" and="" sacrum,="" a="" stage="" i="" ulcer="" on="" her="" left="" elbow,="" and="" a="" stage="" iii="" ulcer="" on="" her="" right="" buttock.="" these="" sores="" continued="" to="" plague="" decedent="" through="" 2004.="" it="" was="" at="" this="" time="" that="" the="" water's="" edge="" physician="" noted="" ecchymosis="" of="" the="" extremities="" at="" "various="" stages="" of="">

Tadrick and Kirby referred to the observation around this time of swelling and bruising on decedent's upper torso and right shoulder. Tadrick noted a July 17, 2004 nursing assessment showing "a swollen and extensively bruised right shoulder area that was warm to the touch, indicating inflammation of the tissues." Decedent was sent to CHS, where the physician documented a large hematoma with moderate bruising. The physician noted "[o]ld areas of ecchymosis scattered over proximal humerus area and shoulder area." The latter observation raised in Tadrick "concern of the possibility of resident abuse."

The nursing staff documented swelling and bruising of decedent's right arm and, despite earlier signs of improvement, right shoulder in July 29 and July 30 entries. The staff and the nurse practitioner found a hard mass in decedent's upper chest consistent with a dislocation. Kelly was notified of decedent's movement to Mercer Medical Center, where the latter was diagnosed with urosepsis. Dr. Kirby states that decedent was treated at CHS, not Mercer, during the month of August. The CHS hospital notes observed several bruises on decedent's right forearm and breast, right leg, and lower right extremities. The hospital contacted social services "to rule out possible physical abuse." Dr. Kirby noted that decedent's platelet count and coagulation results were "all within the normal range." Tadrick noted that there were no medical records provided to determine the cause of the injuries, but stated that "[t]he appearance of unexplained bruising and swelling on a resident is a matter of great concern and the facility must investigate the possibility of resident abuse." Tadrick concluded that "[u]nexplained bruises, hematoma formation, and edema of her right upper thorax and shoulder area occurred during her residency at Water's Edge and raise a high index of suspicion of ill treatment by commission."

Dr. Kirby opined that "[t]he accident wherein Ms. Burnett's right heel was run over by a wheelchair could easily have been prevented if those attending her had been more cautious." He attributed the entirety of decedent's infections, dehydration and pneumonia to the immobility caused by the right heel fracture. He concluded as well that:

The number of skin tears and bruises that Ms. Burnett sustained while a resident at Water's Edge seems inordinately high. Uniformly, incident reports were not filed and, as far as I can ascertain from the copied records, no investigations of the etiologies of the various skin tears or bruises were performed. The paucity of information especially surrounding the extensive bruising found 8/04 and the marked axillary deformity/bruising 7/04 raise my suspicion about abuse and/or neglect of Ms. Burnett by the Water's Edge staff.

He concluded within a reasonable degree of medical certainty that Water's Edge's deviations from the requisite standard of care directly caused decedent to sustain "a fracture of the right heel, developed immobility associated decubitus ulcerations and pulmonary and urinary tract infections, and sustained repetitive bruises and skin tears."

Water's Edge presented the expert report of Dr. Raymond E. Cogen. He opined that the stroke, not the right heel fracture, was the cause of decedent's decline in health. He ridiculed Tadrick and Kirby's speculative reliance on decedent's statements to reach their conclusions about the right heel fracture. However, clearly Dr. Cogen's opinion misinterpreted the facts as well. For example, Dr. Cogen ascribed decedent's January 2003 complaint to her "dementia," even though she did not suffer from dementia until after the March 2003 stroke, and Dr. Cogen himself recognized that she was adequately oriented and could converse appropriately at the time of the right heel fracture.

As for the other medical problems, Dr. Cogen noted that decedent's care plan was adjusted after her stroke to account for her increased potential for "skin breakdown." He thought that "even when all appropriate care is provided, as in this case, pressure ulcers still occur in certain patients." He ascribed decedent's skin tears, bruising and swelling to her use of two anticoagulants, Coumadin and Plavix, and to her paperlike skin (senile purpura). He concluded that "[i]t is simply not possible to determine the institution at which each of these skin lesions occurred, but it is my opinion, within a reasonable degree of medical certainty that the skin tears, bruising and hematomas were the consequence of Plavix and paper thin skin and not any act or failure to act by [Water's Edge]."

To complete the summary judgment record, the estate presented select pages of the deposition of social worker Kathleen Yapp. Yapp had received no formal medical training. She was required to attend forty hours of continuing education to maintain her social work license, and undertake competency exams each year on the detection of geriatric abuse. Yapp testified that she interviewed decedent when the latter was admitted to the hospital in August 2004 with stage III decubitus ulcers. At that point, it was necessary to ask the State, through the Office of the Ombudsman for the Institutional Elderly, to review the case for abuse. Yapp testified that "any time either myself or the nurse went near Ms. Burnett, she was very fearful. And I actually put in quote, quotations, she was fearful of being physically examined." Decedent would "cringe" or "shrink back" as if she did not wish to be touched. Yapp stated that she did not receive a definitive response from the physician about the presence of abuse: the physician noted that decedent was nonverbal and had other comorbidities, but that the wound "could" suggest abuse. Yapp concluded that there was abuse in this case and submitted a report to that effect.

Decedent left Water's Edge on August 2, 2004. She died on October 1, 2004.

I.

The judge heard Water's Edge's motion for summary judgment, and the estate's cross-motion for partial summary judgment on the right heel fracture, on March 2, 2007. Like the estate's written submissions on this appeal, the motion judge frequently moved back and forth between the fractured right heel issue and the allegations of abuse.

a. The Fractured Right Heel

Water's Edge argued that there were no facts to support an alleged connection between its actions and decedent's right heel injury. This is because there was no evidence produced by either side to demonstrate that the injury occurred as decedent had explained it to others. The estate did not depose the resident nurses or other employees that aided decedent during her stay at Water's Edge. The sparse evidence in support of the estate's claim that an employee hit decedent's heel with a wheelchair consists of decedent's hearsay statements.

Given the uncertain nature of the evidence, the estate argued for the application of res ipsa loquitur. The estate relied on the fact that decedent could ambulate only with the assistance of one worker on each side and one worker walking behind her with the wheelchair in place. At one point, she required assistance to roll over in bed. As such, the estate argued that Water's Edge employees must have witnessed the accident during their alleged "substandard" care of decedent. It urged that ...


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