Legal Background

Because the facility specifically appealed the punitive damages, the Court of Appeals had to decide whether punitive damages were warranted. The facility argued that the award of $100,000 was excessive and in violation of the Due Process Clause of the 14th Amendment. Three criteria are used to examine the appropriateness of the amount of punitive damages: 1) the degree of reprehensibility of the defendants’ conduct; 2) the disparity between the harm suffered and the amount of punitive damages; and 3) the difference between the punitive damages and civil penalties authorized in comparable cases. The facility only argued the first criteria and claimed that its actions did not rise to the level of reprehensible. The Court of Appeals disagreed and pointed out that Mr K had been admitted without a physician’s medical assessment or order, without an accurate verified medication list, and without knowing who his primary physician was. A drastic medication change was made within 24 hours of his arrival without an examination performed by a physician or NP. The Court also pointed out that according to Nurse B’s notes, Mr K was given oral glucose gel that should never be administered to unconscious patients. The Court noted that expert testimony pointed out numerous missed opportunities by the facility to notice and correct the drastic overmedication of the patient, as well as the failure of Nurse B to notify the physician or NP about the incidents of hypoglycemia. The facility had promised a level of care that it was neither able nor licensed to provide. The family had been paying $6000 per month for memory care, but the facility was only licensed as a personal care home, requiring much lower levels of skilled care under the state’s regulations. The experts also faulted the nurses and staff at the facility for not recognizing that increasing a patient’s insulin from 10 units to more than 50 units should raise a red flag. Finally, the experts faulted Nurse B for giving an unresponsive patient a gel form of glucose when she should have given the patient glucagon, which is administered via injection.

The Court of Appeals held that the egregious conduct of the facility, even for the brief time the patient was there, supported the amount of punitive damages and affirmed the award. Because of the patient’s age at his death, his frail health, and his minimal economic prospects, the compensatory damages were low as the economic “value” of a person is often tied to their age.

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Protecting Yourself

To protect against liability, never order or change medications for a patient you have not evaluated in person. This should be obvious, particularly in this case where NP A didn’t have any medical records on the patient. If you encounter a situation where you do not have access to a patient’s medical records, you must conduct your own examination and work-up. It is never acceptable to treat a patient based simply on a family member’s verbal report of the patient’s medical history and medication regimen.

Ms Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.