Supreme Judicial Court affirms judgment in Presque Isle nursing home case

Posted Feb. 15, 2014, at 11:56 a.m.

PRESQUE ISLE, Maine — In a 3-2 decision on Thursday, the Maine Supreme Judicial Court affirmed the vote of an Aroostook County jury in a case brought by representatives of the estate of a Fort Fairfield woman against a nursing home that they believe was negligent in caring for the woman prior to her death.

The jury found in favor of the Presque Isle Nursing Home in September 2012, determining that the death of 85-year-old Vera Boulier was not the result of negligence on the part of the health care facility. Superior Court Justice E. Allen Hunter was the presiding judge.

The appeal of the civil case was heard in June 2013 when the Law Court was sitting at the Penobscot Judicial Center in Bangor. The Boulier estate was represented by Portland-based attorney Ken Hovermale. The nursing home was represented by Christopher C. Taintor of Portland.

According to Hovermale, Boulier, 85, was a resident at the facility and had a document charting her medical needs and requirements, called a “care plan.” While in the bathroom at the nursing home, Boulier fell and suffered injuries that eventually led to her death at a Bangor health care facility in January 2009.

Hovermale based the appeal on his belief that the court failed to instruct the jury to consider whether the nursing home was negligent in communicating instructions for Boulier’s care to its staff, and it excluded evidence of the nursing home’s subsequent remedial measures despite testimony by nursing home staff that such measures were not feasible.

Hovermale said that Boulier, who suffered from dementia and hip problems, had fallen before and was “very frail,” should never have been left alone in the bathroom. He told the Law Court that a certified nurse’s aide who was helping Boulier that day believed that she had to be “in the vicinity” of the bathroom when the 85-year-old was in there, but not in the bathroom with her. The CNA’s supervisor initially said that the CNA had to be in the bathroom with Boulier, he said, but during the trial said that she “misspoke” and agreed that the CNA only had to be in the area.

The attorney said that the care plan was not communicated effectively so that all staff members understood the instructions and could carry them out as directed.

“There were different interpretations of the care plan,” said Hovermale. “The CNA had one interpretation of the care plan, and the director of nursing had another, and my expert said that someone should have been in the bathroom with the patient, because if she got up, she could fall. But no one knew what the care plan meant.”

The CNA did not have sanitary gloves on her person or immediately within reach, according to court documents, and asked Boulier to stay where she was in the bathroom so that she could retrieve a pair from a dispenser located approximately five to six feet away. As she was doing so, the fall occurred.

Hovermale told the Law Court that he should have been allowed to let the jury decide whether the nursing home was negligent in communicating Boulier’s care plan to its staff. The attorney also sought to have admitted into evidence during the 2012 trial that Presque Isle Nursing Home took remedial measures, such as having staff carry gloves with them after Boulier’s fall. He contended that Hunter erred in excluding him from presenting such evidence.

Writing for the majority in the Law Court’s decision, Judicial Court Justice Jon Levy noted that the only evidence that the estate presented at trial relating to the standard of care that a nursing home must employ in communicating its patient care plans to its staff was expert testimony that CNAs must receive updates when beginning a shift.

Levy noted that the CNA assigned to care for Boulier the morning that she fell in the bathroom testified that “she regularly received these ‘shift reports.’”

“Thus, the estate failed to provide any evidence that PINH deviated from the standard of care it owed Boulier in the manner it communicated her care plan to the [CNA in charge of her care,]” wrote Levy.

They also found no fault with the jury instructions.

Justices Warren Silver and Joseph Jabar, however, were the dissenting votes. Writing the dissenting opinion, Silver pointed to rules of evidence that he felt should have allowed for the admission of the remedial measures taken by the nursing home after Boulier’s fall. He felt that the trial court improperly limited the jury instructions, thus denying the estate the opportunity to have an important part of their case considered by the jury.

Taintor has consistently defended the actions of the staff at the nursing home and said that there was no negligence involved in the care of Boulier.

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