Defense Verdict in Vukoye v. Huntington Eldercare, Inc.

            Sean Cowdrey, a partner at Beach | Whitman | Cowdrey, LLP, in Oxnard, California, obtained a defense verdict on October 18, 2010, in an elder abuse lawsuit brought by Stephen Garcia and William Artigliere of The Garcia Law Firm against an assisted living facility and its owners for a medication error.  Plaintiffs’ counsel asked the Orange County Superior Court jury to award approximately $500,000 in compensatory damages and also sought punitive damages and attorney’s fees.  The jury deliberated for less than one day after a two week trial and concluded that the defendants were not liable for elder abuse by neglect.

            In Vukoye v. Huntington Eldercare, Inc., the plaintiffs contended that defendants should not have admitted or retained the resident in their assisted living facility since her acuity level was too high and she required skilled nursing care.  Furthermore, plaintiffs presented evidence that the facility gave the resident over four times the prescribed dosage of Remeron, an anti-depressant, an error allegedly caused by the administrator’s reckless neglect in failing to recognize the dosage error.  In addition, plaintiffs argued that the medication administration documentation had been altered by the administrator to make it appear that the resident had received fewer dosages of the medication after the error was discovered.

            The defense faced an uphill battle at trial.  The defendants had been originally represented by an attorney who had no healthcare or elder abuse litigation experience and who failed to designate experts, did not conduct any discovery, and then withdrew from the case.  When Beach | Whitman | Cowdrey substituted into the case on the eve of trial, the court refused to re-open discovery or to allow the defense to designate experts.

            Nevertheless, at trial Mr. Cowdrey presented evidence that the administrator and facility staff went the “extra mile” for the resident and provided a high quality, personalized environment in the last days of her life.  He elicited testimony from the Department of Social Services licensing representative that the medication sheets that had been altered were not required documents, did not violate any regulations, and only substantial compliance (not strict compliance) with regulations were what were necessary in operating a long-term care facility.  The jury found no liability and did not have to reach the issue of damages.

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