Sara McCorkle v. Erickson Senior Living LLC and Greenspring Village Inc.

Case Name: Sara McCorkle v. Erickson Senior Living LLC and Greenspring Village Inc., Law No. CL 22-4439 (Fairfax Circuit Court)

Date of Trial:  March 6, 2023, the case took 7 days, with the jury deliberating some   8 hours over the course of two days.

Nature of : Plaintiff alleged various claims against Defendants Erickson

Case: Senior Living LLC  &  Greenspring Village Inc. including negligence, breach of contract, violations of the consumer protection act and punitive damages. Plaintiff alleged that after she transferred from independent to assisted living, the facility failed to meet her ADL (activities of daily living) needs, including assistance with showering and basic hygiene.  The demented Ms. McCorkle liked to take hot showers by herself and was supposed to receive staff assistance with all bathing.  She had a missing ear drum and could not get water in her ear, or the water could go into her brain.

In the early morning of December 20, 2020, Ms. McCorkle took a shower by herself, without the required staff assistance and fell in the shower.  While lying in the shower she sustained burn injuries, and the staff was not alerted to the incident until the water started running into the hallway. She started developing burn blisters soon after the staff removed her from the shower.  However, when she was transferred to Fairfax Hospital that same day, the staff never reported the history of her being found in the shower under running water, so the hospital did not diagnose or treat her for burn injuries.  When she saw a dermatologist after discharge, she was subsequently diagnosed with burn injuries on her back and leg.

For more information regarding the allegations, you can review the Amended Complaint here.

Outcome:   The jury found in favor of Plaintiff against Defendants Erickson Senior Living LLC and Greenspring Village Inc. on the negligence claim and awarded damages of $45,000.  The jury did not find that Defendants had breached their contract.  The claim of punitive damages was dismissed on demurrer shortly before the trial, as Plaintiff has amended her complaint to include a claim of negligence per se based on the violation of assisted living regulations. Plaintiff non-suited

her Consumer Protection Claim on the first day of trial.

Factual Summary

Plaintiff, Sara McCorkle was 97 when she transferred to Greenspring Village Assisted living facility operated by Erickson Senior Living LLC.  She had spent 18 years in an independent living apartment at Erickson Senior Living before her dementia advanced to the point where she needed assistance with all her ADLs.  Prior to her transfer, her family was paying some $22,000 a month for private duty aides on top of her monthly rent.  Erickson continuing care retirement community offered a program where once you paid your initial 335k deposit on top of your monthly rent, you could age in place through all levels of care, independent, assisted living, skilled care and finally hospice.  Even if you ran out of funds, Erickson would take social security, etc. and whatever monthly income you had and allow you to remain in the facility.

The family transferred her to assisted living on November 25, 2020.  Upon transfer the family immediately encountered problems: the call bell system didn’t work, the apartments heater was broken, and staff was not checking on the her with the frequency the family had anticipated.  They hired private duty aides during the transition who documented multiple care issues – including the failure to check on Sara for an entire 8-hour shift.  On multiple occasions the family and/or private duty aides had arrived to find that Sara had gotten up in the late evening/early morning to self bathe or toilet.  Her room had been found in disarray, with feces on her bed, puddles in the bathroom, suggesting that she had attempted to shower.  In discovery, Defendants produced their call bell logs for Ms. McCorkle, which showed long delays in responding to Plaintiff’s call bell system.

Sara had a missing ear drum which meant that if she got water in her ear, it could go directly to her brain.  She was also demented and was a high fall risk.  Erickson’s general policy was to give the residents a shower twice a week. The Erickson plan of care required that she receive hands on assistance with bathing.  In the care plan it was noted that she liked to linger in the hot shower. After her admission the family and private duty aides sent multiple emails to the facility explaining their concerns that the night staff was not checking on her or providing proper bathroom assistance.  As a result, the demented Plaintiff was getting up in the late evening early morning to self bathe.  Defendants failed to update their plan of care to address this dangerous behavior.

In the early morning of December 21, 2020, Sara attempted to take a shower and fell down.  The staff responded only after the water from the bathroom went out into the hallway.  The nursing records suggested Sara was found at 11:05 a.m. The incident report, which was not part of the resident’s official chart, reflected that she was found at 4:30.  In discovery Defendant took the position that the incident report was privileged, but the Court found that Defendant had not substantiated the privilege objection.  To review that order, click here.

After the fall the family was contacted and informed that Sara had fallen in the shower and aside from some scrapes and bruises, she appeared to be uninjured.  However, she started developing blisters which were diagnosed as burn injuries.  When Defendants transported her to Fairfax hospital, they failed to provide any relevant history of her being found in a shower under running water.  Fairfax Hospital failed to diagnose burn injuries and based on this fact, Defendants argued that she did not sustain burn injuries in the shower.   After the injury the family declined to return Sara to Erickson as they believed she was not safe in assisted living. She only spent one month in assisted living and the family believed that Erickson was incapable of meeting her needs, which formed the basis for the breach of contract claim.

The family reported the incident to Defendant’s licensing authority, the Department of Social Services.   An inspector found that the facility committed various regulatory violations including failing to report this incident to licensing, failing to properly care plan her needs (by noting all forms of assistance she required in showering including mechanical help) failing to provide the assistance she required in the shower and failing to document ADL care.   Click here to review the complete survey.  Defendants did not formally challenge the survey violations and responded with a plan of correction. In a Motion in Limine, Judge Michael Devine struck all but one of the survey findings involving McCorkle and later limited the state surveyor to testifying as a fact witness.

Legal Rulings:

On August 8, 2022, Judge Michael Devine granted Plaintiff’s Motion to Compel Defendant’s incident report, finding that Defendants had not carried their burden in establishing privilege under Va. Code 8.01-581 (17)(B)(i), et seq.  Click here to review the order.

On January 6, 2023, Judge Christie A. Leary granted Plaintiff leave to amend the complaint to conform the pleadings to the evidence and add a claim of negligence per se based on the violation of assisted living regulations.  Click here to review the order.

On February 10, 2023, Judge Devine granted Defendant’s Motion to strike evidence of Defendants’ prior Survey violations (involving improper service planning and failing to report incidents to DSS) and further excluded aspects of the McCorkle Survey, as being purportedly unrelated to the shower incident.  Judge Devine excluded all survey evidence with the exception of the one survey finding involving the failure to provide assistance in the shower.  At trial Judge Devine refused to qualify the surveyor as an expert and simply allowed her to read her limited finding without providing an explanation of her findings because it implicated hearsay.  Plaintiff argued that her analysis was based on findings in the records, which had already been admitted into evidence. Click here to review the order.  Click here to review the transcript.

February 17, 2023, Judge Bernhard ruled on Defendants’ demurrer to Plaintiff’s First Amended complaint.  He sustained Defendants’ demurrer to Plaintiff’s claims of negligent hiring and training.  He overruled the demurrer as to allegations of direct liability and negligence per se.  He granted the demurrer to Count III, punitive damages. He denied the demurrer with respect to Count IV, breach of contract, with the exception of contract claimed based on the facility’s disclosure agreement.  Click here to review the memorandum decision.  Click here to review Plaintiff’s Opposition to Defendants’ Demurrer and Responsive pleading.

February 24, 2023, Judge Obron denied Defendant’s Motion to Bifurcate. Click here to review order.

Trial Testimony Summary

Plaintiff called Sara’s treating dermatologist to address the burn injuries.  While the dermatologist was able to give her opinion that she had suffered burns, the court prevented Plaintiff from discussing her underlying basis for her opinion since it was based on the hearsay of the daughter (as opposed to the demented patient).  Pictures of the burn injuries were admitted into evidence.

The treating night nurse on duty on December 20, 2020,  testified that she was never aware that Sara was getting up in the late evening or early morning to self-shower.  The Care Manager testified that he was aware of this behavior and updated the plan of care by orally telling the staff in huddles.  However, the night nurse testified that she was not aware of such a huddle.  In deposition she testified that if she had been aware of such conduct, she would have ordered “constant rounding.”  Judge Devine excluded the testimony of what she would have done had she known of Ms. McCorkle’s tendency to self-shower in the early morning.

Plaintiff presented an administrator/nurse expert and doctor to opine that the facility failed to properly create a care plan to address Ms. McCorkle’s dangerous behaviors in getting up in the early morning to self-shower. They opined that once the facility was aware of Ms. McCorkle’s dangerous behaviors in getting up at night to self-shower, they needed to modify the care plan.  Required interventions should have included frequent rounding, offering early AM showers and a shower stopper.  Two of those interventions (frequent rounding and offering early AM showers) were added to the care plan after the incident.  The Administrator also testified to lack of adequate staffing noting that one staff member on the night shift was inadequate for 22 residents.

Defense Arguments and Expert Testimony:

Defendant took the position that the Department of Social Service Regulations did not set the standard of care for an assisted living facility.  At trial it was established that the regulations are actually called standards for assisted living facilities.  While their expert nurse (Crystal McDowell-Miller, from Danville) and doctor (Jonathan Evans) took this position, the defense administrator (Diane Johnson) testified that they did set standards of care for the facility.

Defendants also argued that the injuries Ms. McCorkle suffered were not burn injuries.  Dr. Jonathan Evans was the defense expert who was designated to testify it was not a burn.  However, his expert designation did not include any opinion as to what caused the actual injuries.  At trial, Dr. Evans suggested they could be pressure-related injuries.

Current Case Status – Under Appeal

Plaintiff filed a timely appeal to the Court of Appeals.   Recent changes in Virginia law now allow Plaintiff’s to take a civil case to Court of Appeals, as a matter of right.  For more information regarding the case, contact Plaintiff’s counsel directly at jdowney@jeffdowney.com

Contact Information:

The Law Office of Jeffrey J. Downey, P.C.

McLean Virginia Office, Tysons Corner

8300 Greensboro Drive, Suite 500

McLean, VA 22102

Phone: 703-564-7318

Website: https://www.jeffdowney.com/

Email: Jdowney@jeffdowney.com

Handling cases in Virginia, Maryland and the District of Columbia