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5 Million Dollar Assisted Living Verdict

DETROIT — An Oakland County jury held an assisted-living facility liable for the death of a 90-year-old dementia-stricken resident after she swallowed dishwasher detergent left in an unsecured cabinet.

Lawrence J. Buckfire, co-counsel for the estate, said he was pleased that the jury determined the decedent’s age was not a factor in awarding her estate $5,080,000 — $3 million of which was for conscious pain and suffering.

“One of the things you’re always concerned about when doing a case for an elderly resident is somehow the jury is going to discount the value of that person’s life or the loss of that person’s life based upon their age,” said Buckfire, of Buckfire & Buckfire PC in Southfield.

“Defendants in insurance companies pound their chest on that issue.”

Lack of documentation

Willie May Henderson wandered into the kitchen area at The Fountains at Franklin in Southfield. One of the two caregivers on duty was on a break, leaving the other to watch over 17 residents by herself. Based on timesheets, the caregiver stayed out 56 minutes instead of the allotted 30 minutes. A substitute supervisor was not brought in.

Buckfire said the cabinet doors beneath the kitchen sink had easy access, with a magnetic lock on one side and a makeshift wood-stick mechanism designed by the maintenance staff on the other. Unsupervised, Henderson opened the cabinet, opened the bottle of detergent and ingested it.

After being found with her head leaned back and her lips swollen, Henderson was rushed to the hospital. The injuries to her mouth, throat, esophagus and stomach were so severe that she could not undergo surgery and was unable eat or drink. She died 13 days later.

Buckfire said the defense did not admit liability, argued that it took reasonable measures, and asserted that no other residents had gotten into locked cabinets before.

Arguing damages was easy, said Buckfire, who tried the case with Randall M. Blau, also of Buckfire & Buckfire. But he said proving negligence was a challenge.

“These facilities usually are very poor at documenting treatment and important events,” he said. “Sometimes that poor documenting hurts them, obviously, because they can’t verify what they did or didn’t do, but it can make it more difficult for us to prove negligence on their part because the documentation is so poor.”

Buckfire said the facility’s lack of written procedures for securing hazardous chemicals made an impression on the jury. And despite the facility’s claim that locks and doors were regularly checked, there were no inspection records, he added.

“The lack of that documentation really hurt the defendant; there was no way they could establish that they did all the things they argued that they did,” Buckfire said.

The facility’s administrator claimed there was a safety policy, he said, but the facility’s national risk manager conceded at trial that there wasn’t one.

Not fully secure

In addition, Buckfire said he pointed out inconsistent statements among employees about the cabinet’s condition and how the incident occurred because of it.

“A top right hinge from the cabinet was loose, so they immediately determined that somehow my client, a 90-year-old lady in a wheelchair with dementia, forcibly pried it off with her fingers because there were no tools or utensils in the area,” he said.

Buckfire said that before trial, the defendant asserted that Henderson might not necessarily have been the one damaging the door, “but there was nobody else. It was a locked unit and no one saw any outsiders or anyone else do it.”

To prove that, Buckfire said he used three experts.

Dr. Ljubisa J. Dragovic, a forensic pathologist, testified that if Henderson would have done what the defense asserted, her fingers or fingernails would have had abrasions. The records showed none, Buckfire said.

Harold Josephs, an engineer, inspected the door and hinges and screws. He testified it was highly unlikely that anyone, especially the decedent, could have forced the hinges off the cabinet, and the probable scenario was the doors were not locked or secured.

Michael Brodie, an assisted living expert, testified that a proper caregiver/resident supervision ratio of 2-to-17 was not used during the time of the incident. Brodie also said that fatal-if-swallowed chemicals must be secured so that vulnerable residents cannot gain access.

“[Y]ou must have appropriate locking mechanisms and secondary prevention measures,” Buckfire said. “And at the very least, have a childproof cap on [the detergent]. Here, the container was actually open, making it easier for [Henderson] to consume it.”

Arguing damages

Buckfire said once he established liability, he argued that Henderson’s estate was entitled to damages in the millions.

One element of damages was the family’s loss of Henderson’s society and companionship.

Buckfire said the loss from a 90-year-old’s death is as valuable as a younger person’s.

He told the jury that people don’t always appreciate their parents, but that sentiment changes as everyone gets older. The time spent with parents becomes more valuable, he added, especially when not a lot of time is left in those parents’ lives.

“The son in this case visited his mom five to six times a week, and with a life expectancy of two to three years, you’re looking at hundreds of missed visits,” Buckfire said. “And the jury understood how close and devoted he was to his mother, and they had no problem determining his loss was the same as if it were a younger person.”

The jury awarded $2 million for loss of society and companionship.

In arguing damages for conscious pain and suffering, Buckfire said he relied on nursing records taken during Henderson’s 13 days in the hospital. He explained that nursing assessments were performed every four hours, which included pain-scale assessments.

“So rather than have me explain and have [the jury] believe me, I did a summary of the pain-scale assessments,” Buckfire said. “These showed that even after she received morphine or other pain medications, quite often her pain levels were at 8-out-of-10 or 6-out-of-10 and so forth.”

He said that while the defense acknowledged that Henderson’s death was terrible, the defendant tried to minimize the damages by saying a lot of times she was on pain medication or a ventilator and wasn’t conscious.

“So I used the actual nursing notes and objective data to show she did suffer every single day for the remainder of her life,” Buckfire said.

He said he felt confident in asking for $3 million for the resident’s full 13 days of suffering after a pre-trial focus group said it would be comfortable awarding that much.

“My argument to the jury and to the focus group was, this woman suffered the same way a 30-year-old, 50-year-old or 70-year-old would,” he said. “Don’t discount the amount of suffering she went through based on her age.”

In addition, the jury awarded $80,000 for medical and funeral expenses.

(This is not a Hughey Law Firm case, we are simply reporting on the verdict).