Virginia: Nursing Homes – A Lawyer’s Gardens

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In Adrian V. Sutton, Executor of the Estate of Helena Sutton, Deceased v. Patrick Henry Hospital. Inc., et al., No. CL14-3553B-04 in Circuit Court for the City of Newport News, Virginia, a patient wrongful death medical malpractice case, Mr. Waterman represents the Plaintiff resident estate against the Defendant nursing facility, The Gardens at Warwick Forest, and other individual healthcare providers. Financial analysis of The Garden’s self-reported cost figures indicates its Warwick Forest nursing facility chronically being staffed substantially below levels expected by the federal government [“CMS”] in 2012.

For example, during the 4th quarter of 2012 (the period of the The Gardens resident death at issue in Sutton), CMS expected 55 minutes of RN time per resident per day, but The Gardens reported only 29 minutes of RN time/resident/day for the 2 weeks before its annual inspection – and, more importantly, only 10+ minutes of RN time/resident/day for the year as a whole. Also for the 4th quarter of 2012, CMS expected 155+ minutes of Aide time per resident per day, but again The Gardens report only 136+ minutes of Aide time/resident/day.

Since CMS uses the 2-week pre-inspection period for RN time/resident/day as a proxy for The Gardens’ “staffing,” The Gardens received a 3 of 5 as its star rating for 2012. However, if The Garden’s more representative year-long self-reporting were used for its 2012 star rating, it would have received only a 1 of 5, i.e., the lowest possible score on the star scale.

Moreover, by not staffing fully at CMS-expected levels, The Gardens at Warwick Forest saved an estimated $1,364,251.00 in 2012. Meanwhile in 2012, The Gardens claimed net income of at least $782,235.00, plus cash and investments of $6,142,353.00.

In Sutton, the patient was admitted to the Defendant nursing facility only temporarily for rehabilitation unto discharge home. But as resident at The Gardens she suffered an unstageable pressure wound and urinary tract infection (“UTI”) unto ultimately fatal sepsis, along with medication error.