Over Defense Objection, Plaintiff Can Compel Videotaping of Her Deposition

Maria Vogel-Short

August 21, 2008

In a case of first impression, a Bergen County, N.J., judge has ruled that a plaintiff can compel the videotaping of her own deposition, even if the deposing party opposes it.

Superior Court Judge Rachelle Harz wrote that a plaintiff-driven recording does not run afoul of the court rule governing videotaped depositions and that any party may videotape a deposition.

She added that videotaping has become a mainstay among lawyers. “Case law from New Jersey and other jurisdictions involving the videotaping of oral examinations makes clear that videotaping has become an acceptable method of creating a deposition record and is widely embraced by the legal profession,” Harz wrote in LaMarche v. Hackensack University Medical Center, BER-L-1100-07.

At issue was New Jersey Court Rule 4:14-9, which governs videotaped depositions. Though it does not address situations in which the deposing party opposes the taping, it does not prohibit it, Harz held.

Her ruling, posted on the state judiciary’s Web site on Aug. 15 and issued on July 22, arose in a medical malpractice suit. Anna LaMarche, now 70, of Hackensack, N.J, was taken to Hackensack University Medical Center on Feb. 12, 2005, for treatment of head and other injuries in a car accident. She was released that day, lost consciousness the next day, was taken back to the hospital for surgery for a subdural hematoma and lapsed into a coma.

She suffered permanent brain injury and cognitive impairment, and had to relearn how to speak, read and move her limbs.

LaMarche sued on Feb. 13, 2007, alleging that the hospital, emergency room physician Vicki Goldhill and nurse Kathleen Ward deviated from the standard of care by failing to take a CT scan and providing information at discharge about complications from head injuries.

On May 9, 2008, defense attorney Rowena Duran of Duran & Pandos in Mountainside, N.J., notified LaMarche of her intent to depose her on June 13. LaMarche’s attorney, Michael Maggiano of Maggiano, DiGirolamo, Lizzi & Roberts in Fort Lee, N.J., asked on May 13 that the deposition be videotaped at the plaintiff’s expense.

Duran opposed it, arguing that R. 4:14-9 is driven by the need to save on travel expenses or preserve testimony by an expert witness or treating physician who would be unavailable at trial.

LaMarche did not fall into either category and her age and physical condition did not render her unique in a medical malpractice case, Duran said. The videotape proposal, Harz’s opinion quoted Duran as saying, “was a blatant attempt to limit what and how I conduct my discovery deposition which is clearly not the purpose of this rule.”

Duran argued that the rule supported her stance because it states that the party who takes the deposition is the party who videotapes it and that the cost of a videotaped deposition is paid by the party taking the deposition.

But Maggiano said videotaping complies with the fairness and justice elements of R. 1:1-2, which allows for flexible interpretation of rules. Maggiano argued that the videotape would help the claims manager, a mediator and a trial judge to see LaMarche’s verbalization problems. He also contended that R. 4:14-9(b) enables any party to videotape a deposition so long as notice is served at least 10 days before the deposition date.

Banning a videotaped deposition would present an unwarranted limitation on discovery and recordation tools, he added.

Harz agreed, noting that the broadest latitude should be accorded for discovery and that an audiovisual record is an improvement over a “cold disposition” and assists the trier of fact.

She also said that Duran’s opposition amounts to a request for a protective order blocking the videotaping. R. 4:10-3(c) requires a party show good cause of a potential burden when he or she objects to a proposed discovery method, but Harz said no New Jersey cases address R. 4:10-3(c) in connection with a videotaped deposition. So she turned to Federal Rule of Civil Procedure 26(c), which requires that the party show a clearly defined, serious injury. She also relied on Fanelli v. Centenary College, 211 F.R.D. 268 (D.N.J. 2002), which denied a plaintiff a protective order after a defendant intended to videotape the plaintiff’s deposition. Fanelli also said the harm cited cannot be general or speculative.

Harz said Duran’s focus on the potential effect of the videotaping on her style of questioning fell short of the mark needed to establish harm.

“Simply because defense counsel is somewhat camera shy and/or uncomfortable about the prospect of questioning plaintiff before a video camera” wasn’t enough, Harz said.

Duran did not return a telephone call.

Maggiano says he wanted the deposition videotaped because reading LaMarche’s answers would not show how she answered the questions.

“Her words might be slow, delayed and slurred. In a written deposition, you only would see what she said, not how she said it. If you watch her testimony, you can actually see how she was affected by this event,” Maggiano says.

 

Sally Clark Doctor Overturns Ban

6:22pm UK, Sunday September 21, 2008

A doctor who accused the husband of solicitor Sally Clark of murdering their two children has won his bid to be allowed to return to work.

Dr David Southall can return to work as a paediatrician

Dr David Southall claimed it was “beyond reasonable doubt” that Steve Clark killed his sons after he watched an interview featuring Mr Clark eight years ago.

The paediatrician was subsequently found guilty of serious professional misconduct and was banned four years ago from engaging in child protection work.

But a General Medical Council panel in Manchester has lifted the ban.

I would like to thank my paediatric colleagues, especially those who came to give evidence on my behalf.

Dr David Southall

Andrew Reid, chairman of the GMC’s Fitness to Practise panel, said Dr Southall had expressed regret and remorse for his actions and demonstrated “considerable insight” into his failings.

Speaking after the hearing, Dr Southall said: “I would like to say how pleased I am by the General Medical Council’s decision today.

“I would like to thank my paediatric colleagues, especially those who came to give evidence on my behalf.”

Dr Southall told the panel last month he still thought he was correct in raising the alarm over Mr Clark, but admitted the language he used in the accusation was “injudicious”.

The 60-year-old believed Mr Clark attempted to suffocate his eldest son, Christopher, in a London hotel room in 1996 following his description in the Channel 4’s Dispatches interview about how the child suffered a nose bleed and breathing difficulties.

The late Sally Clark with husband Steve

He said he owed an apology to the late Mrs Clark for his assumption that if her husband had smothered Christopher he must also have killed their second son, Harry, who died 13 months later.

But he maintained his concerns about the events in the hotel room remained and the incident “has not been explained by the passage of time”.

Mrs Clark, 42, was convicted in 1999 of double murder but cleared by the Court of Appeal four years later.

She died of natural causes at her home in Chelmsford, Essex, last March.

Christopher died nine days after the hotel room incident in December 1996 aged 11 weeks in the sole charge of Mrs Clark.

The couple’s second son, Harry, died at home in January 1998 aged eight weeks.

Mr Clark said he did not want to comment on the ruling

 

Smith’s bosses face investigation

RICHARD LAUTENS/TORONTO STAR

Justine Trayner, left, and mother Brenda Waudby wait for Justice Stephen Goudge’s report. Waudby was wrongly charged with the murder of her 21-month-old daughter. (Oct. 1, 2008)

Oct 02, 2008 04:30 AM

Theresa Boyle
Staff Reporter

The College of Physicians and Surgeons of Ontario has launched an investigation into Ontario’s former chief coroner and his deputy.

Drs. James Young and Jim Cairns yesterday came under stinging criticism by the Goudge Commission for their “lax” oversight of a pediatric pathologist whose litany of errors led to a series of wrongful murder charges and convictions.

Asked yesterday if the investigation into Young and Cairns was being undertaken because of failures on their part exposed by the commission, college spokesperson Kathryn Clarke responded: “I can only confirm that they are the subject of an investigation.”

The college investigates allegations of professional misconduct and incompetence. If cases go to a disciplinary committee, penalties can range from a reprimand to a licence revocation.

The college is also investigating Smith for professional misconduct, but because he no longer practises in Ontario, penalties – if imposed – would be limited to a fine.

Confidentiality rules normally prohibit the college from revealing details of a probe, or even if one is underway. But the college was able to confirm the investigation into Young, Cairns and Smith because of a exception to the confidentiality rule that applies when there is a “compelling public interest.”

Justice Stephen Goudge, who headed the Public Inquiry into Pediatric Forensic Pathology in Ontario, which began in April last year, yesterday released his final report.

In it, he had harsh words for Smith and his two superiors.

Goudge detailed a legion of Smith’s shortcomings, including a lack of basic knowledge about forensic pathology, providing speculative and erroneous opinions in court, making false and misleading statements in court, exaggerating his expertise and being sloppy, tardy, arrogant and dogmatic.

“Dr. Smith was adamant that his failings were never intentional. I simply cannot accept such a sweeping attempt to escape moral responsibility,” Goudge wrote in his 675-page report.

The commissioner took particular aim at Smith’s bosses, not just for failing to rein him in, but also for propping him up and protecting him. “The story of failed oversight in Dr. Smith’s years is in large part the story of Dr. Young’s and Dr. Cairn’s failures and of the context in which that happened – the completely inadequate mechanisms for oversight and accountability.”

The commissioner noted that Young sent a letter to the college in April 2002, defending Smith in response to a number of complaints that had been lodged against him. The letter, curiously penned by Smith’s lawyer, was sent to the college, even though Young was aware at the time that serious questions had been raised about the pathologist’s ethics and judgment.

“Dr. Young’s letter misled the CPSO,” Goudge wrote.

“Dr. Young told the inquiry that he sent this letter in an attempt to be fair to Dr. Smith. He did so, however, at a cost to the public interest … The letter was not balanced or objective or candid. It was not a letter worthy of a senior public office holder in Ontario,” Goudge stated.

Later that year, Cairns sent a letter to the college, defending Smith’s work on another case. “In so doing, Dr. Cairns exceeded his expertise, the effect of which was to shield Dr,. Smith’s opinion from further scrutiny,” Goudge said.

It wasn’t until 14 years after the first warning signal had been sounded and a new chief coroner was appointed to replace Young that the province acted to effectively curb Smith, the report noted.

 

Patient released by IVF doctor ‘ended up in intensive care’

By Jeremy Laurance, Health Editor
Wednesday, 1 October 2008

GMC disciplinary panel hears that fertility specialist sent vomiting woman home

Wednesday, 1 October 2008
Assisted Reproduction and Gynaecology Centre , run by Mohammed Taranissi

Britain’s most successful IVF specialist discharged a woman patient from his clinic who complained of repeated vomiting, hours before she collapsed unconscious with a life-threatening condition, a disciplinary panel heard yesterday.

Britain’s most successful IVF specialist discharged a woman patient from his clinic who complained of repeated vomiting, hours before she collapsed unconscious with a life-threatening condition, a disciplinary panel heard yesterday.

Mohammed Taranissi, the wealthy doctor and entrepreneur who runs two London fertility clinics and regularly tops the league table for the most live births, sent the patient home, after earlier telling her “she was suffering from anxiety and that she had a mental block about her treatment”, the panel of the General Medical Council heard.

He was accused of failing to provide basic medical care to the woman who was later admitted to intensive care. She had been vomiting and had swollen wrists and was taken to hospital after suffering a seizure. There she was diagnosed with a potentially fatal electrolyte imbalance.

Mr Taranissi, 53, is charged with serious professional misconduct over his failure to refer the woman for further investigation or advise her to see her GP on 11 August, 2004.

The woman had called the clinic the previous day to say she had been vomiting and had been seen by Mr Taranissi. At 2am that morning, her husband telephoned the doctor to say she was being repeatedly sick, when Mr Taranissi made his remark about her problems being psychological.

She attended his clinic, the Assisted Reproduction and Gynaecology Centre (ARGC), near Harley Street, London, later that day and was “crying and feeling unwell”. She had a scan and was discharged. Later that evening, after collapsing, she was admitted to intensive care at Whittington Hospital, north London.

Joanna Glynn QC, for the GMC, told the disciplinary panel that Mr Taranissi would not have been expected to diagnose the woman’s exact condition.

“The allegation focuses on the seriousness of letting a patient leave his clinic with no proper investigation or advice in circumstances that called out for it,” she said.

Mr Taranissi is also accused of advising a second woman, aged 36, to have treatment with a controversial drug called Humira without telling her it was not licensed for infertility.

After she refused the drug, he is said to have become angry with her at a second meeting in June 2004 and of saying he would not be held responsible if she had another miscarriage.

She was told by one doctor at the ARGC that she needed immunological tests costing hundreds of pounds although she believed the tests were “a waste of money”. But she said she was “very, very, very angry” when she discovered they were unrecognised fertility tests. In cross-examination, Nicola Davies QC, representing Mr Taranissi, told the panel that the woman had written letters of complaint about the treatment she had received at three separate units: the ARGC, the Lister Hospital in London and St George’s in south London.

Ms Davies also referred to letters where the woman had referred to another doctor by name and said it was as “clear as daylight” that she had been talking about this other doctor applying pressure regarding immunological tests, and not Mr Taranissi.

Mr Taranissi denies the charges.

The hearing continues.

 

How Hospitals Can Turn Deadly

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By Robert Roy Britt, LiveScience Managing Editor

The rule of thumb is you go to a hospital to get well. But sometimes it’s the hospitals that make people ill and even prove deadly.

The problem is serious enough that this week Medicare stopped paying for the cost of mistakes. An initial list of 10 things won’t be covered, including surgery to remove items accidentally left inside a person during an initial surgery, treatment for bed sores and in-hospital falls, and treating the aftermath of incompatible blood transfusions. Several major insurance companies have already introduced similar rules in recent years.

The definitive study on the problem, which served as a wake-up call, was a 1999 report by the Institute of Medicine of the National Academies. Titled “To Err Is Human: Building A Safer Health System,” it estimated that somewhere between 44,000 to 98,000 Americans die in hospitals each year as the result of medical errors. Just the lower estimate would make medical errors the eighth leading cause of death at the time (more than motor vehicle accidents, breast cancer or AIDS).Among the leading mistakes: misdiagnoses, equipment failure and infections.

Medical errors were found to cause 238,337 potentially preventable deaths — just among U.S. Medicare patients — over a three-year period ending in 2006, according to a study this year by the HealthGrades rating organization. That works out to 79,446 per year. Those mistakes cost $8.8 billion, HealthGrades calculated. The overall rate of errors for those covered by Medicare, which include the disabled and elderly, was about 3 percent.

The Centers for Medicare and Medicaid Services says 193,566 patients were injured in falls while at the hospital last year.

From systemic issues to exhausted staff to problems that medicine has yet to solve, here are just a few of the problems hospitals, and patients, suffer:

Superbugs

You’d think hospitals are the cleanest places around, but it’s quite a job to totally eliminate deadly microbes. They thrive in many hospitals, just waiting to find a way to crawl inside another victim. According to the U.S. Centers for Disease Control and Prevention (CDC), some 1.7 million hospital-associated infections caused about 99,000 deaths in 2002.

Meanwhile, cases of infection from the so-called superbug methicillin-resistant Staphylococcus aureus, or MRSA, have been increasing each year, in part because they’ve evolved to resist the effects of antibiotics. MRSA killed 18,650 Americans in 2005. Most of the deaths are among the elderly, and officials say most younger, healthy people can survive superbug attacks.

The microbes, unfortunately, seem to breed well even in sanitary hospitals, and researchers are not yet sure how to combat the problem.

Noise

Hospitals have become noisier over the years, stressing staff and potentially contributing to more errors. The decibel level at a typical hospital during the day rose from 57 in 1960 to 72 by 2005. At night, the noise level has gone from 42 to 60 decibels since 1960. Guidelines from the World Health Organization call for a maximum of 35 decibels.

Exhaustion

Many medical errors are attributed to exhausted, sleep-deprived doctors and other staffers. A 2006 study reported in PLoS Medicine, looked at 2,737 medical residents and 17,003 of their monthly reports. In months in which residents worked just one long shift-of 24 hours or more, they were three times more likely to report a fatigue-related significant medical error compared with months with no extended hours.

Bad timing

Heart attack victims who arrive at a hospital during off-hours or on the weekend wait longer for help and are at a higher risk of death, according to a 2005 study in medical journal JAMA.

The study involved patients treated with percutaneous coronary intervention, called PCI. It includes angioplasty, in which a catheter-guided balloon is inserted to open a narrowed coronary artery. From the moment a patient entered the door, it took an average of 94.8 minutes to insert the balloon during regular hours. For patients admitted after hours and on weekends, it took 116.1 minutes.

Along these lines, babies born at night are at least 12 percent more likely to die within 28 days, according to a different 2005 study. The reasons are thought to include fatigue and inattention related to shift changes.

Really getting burned

Data from the Pennsylvania Patient Safety Reporting System finds that every year about 28 patients are burned during surgery by fires, such as when oxygen inside a mask ignited. Extrapolated nationwide, the data suggests 550 to 650 surgical burns occur nationwide each year, including one or two deaths, according to a recent MSNBC analysis. Cathy Lake, the daughter of a surgical burn victim, created http://www.surgicalfire.org to highlight the problem.

Change needed

Many errors result from systemic problems rather than negligence or misconduct, according to the Institute of Medicine. For example, medication mistakes were responsible for 7,000 of the deaths in the 1999 study. A 2006 study found that medication mistakes injure more than 1.5 million Americans every year.

Including a pharmacist on medical rounds can reduce the medication errors by 66 percent, the institute states. Handheld computers and patient barcoding have also been found to reduce errors. Many doctors have begun to lobby for cell phones in the hospital, which reduce errors by making communication more timely.

Change comes slowly, however. In 2005, the CDC reported that only 8 percent of physicians used a computerized system for ordering drugs and diagnostic tests. The system compares requests against dosing standards and a patient’s medical records.

 

Former Parker Hughes doctor reprimanded

By MAURA LERNER, Star Tribune

October 1, 2008

The state Medical Board has reprimanded a former Parker Hughes physician for using excessive or unproven treatments on cancer patients.

Dr. Sanda Morar, 43, was cited for unprofessional conduct in September, six years after the board began investigating complaints about misconduct at the now-defunct Roseville clinic.

Morar, who now practices in Illinois, was the last physician to leave the Parker Hughes Cancer Center before it closed in April.

Her attorney, Iden Martyn, said that the disputed actions occurred more than five years ago and that there have been no complaints against Morar since.

“What you really have here is somebody who worked very hard in the subsequent years to work within, in every respect, the bounds of good medicine,” said Martyn, an attorney in Washington, D.C.

He said that the investigation was limited to a review of the treatment of seven patients in 2002 and 2003.

The board found that Morar, a cancer specialist, misused antibiotics, ordered unnecessary PET scans and other expensive tests, prescribed vitamins and supplements for questionable benefit and “subjected patients to prolonged treatment and expense.”

It also found that she “failed to provide appropriate end-of-life care” to two patients and had no documentation that they consented to ongoing treatment.

She was fined $8,000, and she agreed to take courses in medical ethics and recordkeeping. She has since obtained professional board certification in hospice and palliative care, according to the Medical Board.

Martyn said that Morar believed she was providing the best care to patients but that she accepts the board’s findings. “This is a physician who has, for all of her career, tried to do the best she could for the benefit of her patients,” he said. He said that she cooperated fully with the board “and really just wants to get on with her life.”

Morar is the second Parker Hughes physician to be disciplined by the board. The clinic’s founder, Dr. Fatih Uckun, was barred temporarily from treating patients in January 2006 amid allegations of excessive and inappropriate treatment and other misconduct. Last year, the Medical Board restored his license but imposed restrictions on where and how he may practice.

Maura Lerner • 612-673-7384

© 2008 Star Tribune. All rights reserved.

 

US doctor charged with medical misconduct after baby death

An American obstetrician has been charged with professional misconduct after a baby he helped deliver died from a brain bleed.

Ella Irihapti McMillan-Meager died at Southland Hospital on June 12, 2006 after obstetrician Enrique Tomeu breached guidelines during her birth two days earlier.

An inquest into Ella’s death found Dr Tomeu contributed to the baby’s death when he climbed on the birthing bed to get better leverage for his pull on suction cups.

Dr Tomeu has since resigned and returned to the United States to continue working as an obstetrician.

The director of proceedings for the Health and Disability Commissioner, Theo Baker, yesterday told The Press she had laid a charge of professional misconduct against Dr Tomeu with the Health Practitioners Disciplinary Tribunal (HPDT).

If it upholds the charge, the tribunal could force Dr Tomeu to pay compensation to Ella’s parents, Felicity McMillan and Nathan Meager, or get the Medical Council to recommend US authorities take away his licence to practise medicine.

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Commissioner Ron Paterson released a damning report in August on Dr Tomeu’s handling of the case, condemning his decision to perform a vacuum delivery, where a suction cup is attached to the baby’s head, after two previous attempts failed.

Mr Paterson also criticised Dr Tomeu’s birthing technique and his attempts to bully staff into falsifying records to cover up his actions.

HPDT executive officer Gay Fraser said it was unusual for the tribunal to hold a hearing about someone who was no longer working in New Zealand.

Dr Tomeu abruptly closed his Virginia Beach obstetrics practice in the US in 2004 – after being sued repeatedly for allegedly injuring babies during delivery.

According to Virginia Beach Circuit Court records, Dr Tomeu was named as a defendant in seven malpractice lawsuits over 10 years before coming to New Zealand.

Three of those cases resulted in payments to the plaintiffs – two settlements and one jury verdict – totalling more than US$500,000 ($666,844).

On his profile on the Virginia Board of Medicine website, Dr Tomeu put the New Zealand death down to his “communication skills”.

He said: “Bad outcome on birth June 2006. Clinical privileges suspended during investigation. Investigation did not fault clinical management, but was critical of my communication skills within New Zealand. I returned to the US before investigation was completed.”

The Virginian Pilot newspaper reported Dr Tomeu was now on the staff at Crist (crct) Clinic for Women in Jacksonville, in North Carolina.

Dr Tomeu’s profile on the North Carolina Medical Board website recorded he had a medical licence and had faced no public disciplinary action in North Carolina.

There is no mention of his history in Virginia or New Zealand.

– NZPA

 

Surgeon on trial for removing too much breast tissue

Madison County Record

9/30/2008 7:00 AM

By Steve Gonzalez

A plastic surgeon who allegedly removed too much breast tissue in a reduction surgery nearly nine years ago will go on trial this week in Madison County.

Carrie Zang of Witt, Ill. filed suit against R. Craig McKee, M.D. in 2001, alleging McKee violated the standard of care while performing a bilateral reduction mammoplasty with free nipple graft operation on Nov. 22, 1999 at Anderson Hospital in Maryville.

According to Zang, 41, McKee ignored her directive and desire that she be left with average size breasts that would complement her frame when he proceeded to remove 2,553 grams from her right breast and 2,957 grams from her left breast.

There are 454 grams per pound.

Zang claims that prior to surgery, McKee submitted a pre-operative plan in which he stated he would be removing 1,000 grams of breast tissue from each breast.

She also alleges McKee failed to leave an appropriate amount of tissue necessary for a nipple graft causing one of her nipples to fail and “fall off her chest,” her complaint states.

Zang further alleges McKee severed a nerve and failed to properly close the surgical sites due to the lack of tissue needed to do so.

At trial, Zang will allege the surgery left her permanently and irreversibly disfigured. She will claim pain and discomfort, nerve damage, medical expenses, lost wages and psychological damage.

She is represented by Bob Perica of Wood River and will seek damages in excess of $50,000, plus costs.

Ransom Wuller of Belleville will represent McKee in the case.

Circuit Judge Andy Matoesian will preside over the trial that is expected to last a week.

01 L 1731

 

DANGEROUS with a Capital D!!

I’ll be honest with you – hospitals are overcrowded and dangerous, especially the Nation’s Emergency Rooms. At the last facility where I was employed; the Nurse to Patient ratio is 10-14 patients to 1 RN. That is DANGEROUS!!! and the patients are acutely ill, if not critical!!

What can be done?? Quite frankly who knows- you get these young kids coming in – eager, bright eyed and bushy tailed and ready to say How Far??? when their employer says jump!!

Remembering one “tour of duty” that’s still fresh in my mind- I had 10 Patients, 5 of which were ICU patients. How can that be you ask – I don’t exactly know that answer. This also brings to mind that ICU nurse to patient ratio is 2:1 YES!! two patients to one nurse.

Informing your superior’s proves fruitless- they just said – what do you want me to do??? Isn’t that what YOU GET PAID FOR ???

My advice to all out there in cyberspace – DO NOT LEAVE YOU LOVED ONE IN THE ER …EVER!!!

 

Lawsuit: Negligence at Rehab Center led to Death

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CHICAGO — Negligent care at a West Side rehab center ultimately led to the death of a 67-year-old man. His hip was broken when he fell as a nurse tried moving him onto a wheelchair, the man’s daughter says.

A wrongful death lawsuit is filed on behalf of Cydney Kaplan in Cook County Circuit Court, according to the law firm of Levin & Perconti.

Martin Kaplan was admitted to Schwab Rehabilitation Center on Sept. 3, 2007, after having his leg amputated, the suit said. Prior to admission, Kaplan’s daughter did “extensive research” to determine the facility best suited for him. “I wanted to choose the most reputable rehabilitation center for my father. Schwab was a modern facility with a great reputation so it seemed like a no-brainer. I completely trusted Schwab to take good care of my dad,” she said.

Upon admission, Martin’s doctors assessed him as being at risk for falls and accidents during transfers and required he be transferred by two staff members using a mechanical lift. The following day, the suit says, a certified nursing assistant attempted to move Martin into his wheelchair by herself. She used a slide board instead of the mechanical lift his doctors ordered and Martin fell, fracturing his left hip and femur.

Kaplan was admitted to Mt. Sinai Hospital in Chicago the following day for surgery to treat his broken hip and femur. In the weeks after his surgery, according to the suit, his condition deteriorated rapidly. His hip and femur fractures immobilized him and he developed a serious pressure ulcer on his sacrum. In addition, he was diagnosed with sepsis, pneumonia and respiratory failure.

The illnesses developed after his fall at Schwab led to his death in early December 2007.

“We brought this case against Schwab because the staff failed to follow specific care orders,” attorney Steven M. Levin said. “Our goal is to help improve the system of care for other residents by revealing the mistakes made in Mr. Kaplan’s care.”

The suit was filed two months after the Illinois Department of Public Health completed an investigation into Kaplan’s case and cited the facility for improper nursing care..