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Richmond Circuit Court Allows Punitive Damages Against Home Health Care Companies for failure to prevent pressure sores Sloan v. Encompass Home Health of Mid Atlantic, Law CL 192153
As many elders choose to remain at home when they get sick, they are increasingly turning to home health care agencies. Many agencies promise to provide in home nursing and nurse aide services comparable to an assisted living facility or skilled nursing facility. However, in most states, including Virginia, these facilities are not well regulated. Unlike nursing homes and assisted living facilities, these home care agencies are not inspected; nor are their staff subject to specific training requirements.
In the wrongful death case of Sloan v. Encompass Home Health of Mid Atlantic LLC & One Heart One Hand, (Richmond Circuit Court), Ms. Sloan retained these two agencies to provide care in her assisted living apartment. Encompass was engaged to provide the nursing care and One Heart One Hand provided the nurse aide services, including personal care, hygiene and checks every two hours. In a lawsuit her surviving son alleges that they failed to provide proper care, resulting in her development of stage IV pressure wounds which caused her death. One Heart One Hand would end up going out of business before the lawsuit was filed.
Based on the compelling facts of this case, including Ms. Sloan being repeatedly found in her own waste with an open wound, while staff was in the room with her, Plaintiff filed a lawsuit alleging punitive damages. Under the reasoning of Elliot v. Carter, 292 Va. 618 (2016) the Richmond Circuit Court initially granted Defendant’s Demurrer, which was a motion challenging the punitive damage claim. In a second round of Motions, Plaintiff successfully argued that Elliot v. Carter did not alter the long line of Virginia Supreme Court cases addressing punitive damages. Defendant One Heart One Hand argued in their initial responsive pleading that the Alfonso decision, 257 Va. 540, 514 S.E.2d 615 (1999) did not apply the “some degree of diligence or care standard” that was adopted in Carter. However, Elliot and the case it relied upon, Frazier v. City of Norfolk, 234 Va. 388. 362 S.E.2d 688, were not punitive damage cases, but cases in which the Defendants had sought to circumvent sovereign immunity against entities that were traditionally immune from simple negligence suits.
On March 23, 2020, based on a revised Bill of Particulars, Judge Marchant overruled Defendants’ demurrers seeking to dismiss the punitive damage claim. The Judge noted that the revised pleading “states, in sufficient detail, facts that if proven would state a cause of action of willful and wanton negligence as the Plaintiff identifies specific instances involving both Defendants acting in conscious disregard or reckless indifference to Ms. Sloan’s needs while knowing that such action would cause her injury.” The Court also overruled One Heart One Hand’s demurrer that sought to limit their obligations under the language of the contract.
This is an important legal precedent as it clarifies a poorly reasoned line of cases that sought to apply Elliot v. Carter to a malpractice setting. This case also illustrates how poorly regulated and potentially dangerous home care nursing agencies can be to the general public. Ms. Sloan developed pressure wounds which were avoidable with proper care. These agencies, by assuming duties of care that went beyond their skill sets, caused Ms. Sloan’s injuries and eventual death. While the nursing agency eventually recommended a higher level of care because of Ms. Sloan’s infected wounds, that recommendation came far too late to save Ms. Sloan’s life.
Families evaluating the use of home health care agencies need to fully understand the scope of services provided and monitor the level of care closely. If the patient develops skin breakdown or suffers other adverse complications, her level of care needs to be re-evaluated. Families need to make advance plans by evaluating local nursing facilities in their area. If one is forced to make an immediate placement because of an acute condition, like an infected wound, your options could be limited as compared to a planned transition.
If you or a loved one have been injured by a home care agency or other long-term care facility, call the law office of Jeffrey J. Downey for a free consultation.
Serving Clients in Virginia, Maryland and the District of Columbia.
The Law Office of Jeffrey J. Downey, PC
8270 Greensboro Drive, Suite 810
McLean, VA 22102
Phone: 703-564-7318
Email: jdowney@jeffdowney.com
On the web at www.jeffdowney.com
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