News Articles

Quality Of Life, Comparative Fault Are Concerns

Missouri Lawyers Weekly
November 22, 1999

By CHRIS BROWN

With the "graying" of America, attorneys have an increased chance of representing mentally incapacitated people during their careers, practitioners say and they point out that impaired clients present distinctive challenges to the personal injury lawyer.

For example, they say jurors may be reluctant to give Practice large damage awards to plain ‘Point' tiffs whose "quality of life" may be perceived as seriously reduced by their mental condition. And incapacitated plaintiffs may be vulnerable to comparative fault arguments.

Alzheimer's Patient

Cases by Alzheimer's patients injured in nursing homes are becoming more prevalent, said Leeds, noting that he recently represented a 96-year-old woman with Alzheimer's who sued a nursing home after she broke her hip in a fall while trying to get up from her wheelchair.

Leeds said the defendant argued that a home is not a jail, and that there are safety reasons for using the least restraint possible. "They like to say that they can't lock everybody up, or tie everyone down, or provide one-on-one care for all patients," he said.

The key to his case - and an eventual $ 130,000 settlement - was using the nursing home's records to establish that the woman had a history of falling and that the home knew she was in need of close supervision.

"There was extensive documentation," he explained. "In her intake interview, it was already noted that there was a good chance that she would hurt herself. Her chart showed that she had fallen on several previous occasions after getting out of her chair. And her internist had left a standing order about the manner in which she should be ambulated, and that she shouldn't be allowed to get out of her wheelchair because of her risk of falling.

"It was our position that she should have been more closely monitored or even restrained."

Leeds acknowledged that jurors sometimes have difficulty identifying with Alzheimer's patients — and to combat this problem, he tries to arouse the jurors' empathy.

"We all could be in a nursing home," he said. "Jurors want to be sure that there will be good care when it's their turn. I emphasize how very childlike these patients can be, and how deserving of protection,' he said.

He believes a connection can also be made with young jurors. "Even if going into a nursing home seems a remote possibility in their own case, young people know that their parents are aging and could lose their mental abilities and be in need of close care," he said.

"In our graying society, everyone knows someone in a nursing home. We could all end up there. It's a problem that knows no economic or class bounds."

Not A Prison

A recent defense verdict for a nursing home against the daughter of a resident who wandered out at night and froze to death showed the effectiveness of the "a nursing home is not a prison" defense.

Stephen Strum of St. Louis made this argument for the home, and also contended that the elderly man was at fault for cutting off his "Wanderguard" bracelet just before going outside.

He conceded that his strategy of pinning the blame on the decedent made him nervous. "This was a guy who was wearing a Wanderguard bracelet. Even though he cut it off himself, it's pretty obvious that he wasn't all there - that's why they put the bracelet on him.

"Even one of my partners and my secretary said it was baloney, that it was obvious that the guy had dementia and needed to be cared for closely."

Strum explained that his task was made easier by opposing counsel's decision not to present evidence of the man's mental state. "I decided not to open any doors that he had left shut, so didn't even mention his mental state," said Strum. "In fact, I did everything I could to imply that he had all of his faculties."

Vital And Vibrant

Al Johnson of Clayton said it's e important to emphasize the of a mentally incapacitated plaintiff as much as possible.

He recently represented an Alzheimer's patient who sued a nursing home after drinking floor stripper that had been left on a nightstand in her room. The case eventually settled, but Johnson said that it would have been a challenge to try before a jury.

"My client was in quite a state after this injury," he explained. "She couldn't talk, and she was very emotionally distraught. There was no way I could bring her into court."

Instead, Johnson said he planned to use a brief video of his client — depending on whether she could be calmed down enough for the making of the video. Still photos were also a possibility.

"I think it is crucial for a jury to have a face to go with a story," he said. "When I was a prosecutor handling homicide cases, I always used a photo of the victim in life to show the jury that the corpse was once a person."

One of the strengths of his case, according to Johnson, was the plaintiff's daughter, a nurse who would have been capable of describing how the injury had changed her mother's life — and what kind of person her mother was before Alzheimer's set in.

"This family and the daughter were important to this case because they were so involved - they were at the home every day," he said. "The daughter could have talked about how the mother lost her one area of independence - her ability to feed herself.

"But she could also have told the jury about her mother before her disease."

Johnson stresses the importance of presenting the plaintiff as a "vital, vibrant, and alive."

"Juries don't like it when they think they're being given cheap theatrics," he said. "And that's a danger if you go overboard on presenting the plaintiff as pathetic, just lying in bed.

"And if you present the plaintiff in a manner which is a breach of her dignity, there's a good chance you're going to get the jury mad."

Leland F. Dempsey of Kansas City recently faced a daunting task when he represented the daughter of a 39-year-old schizophrenic who died in a high-security mental facility after a fracas broke out when he was refused a cigarette.

The man had been placed in the facility years earlier after being found not guilty by reason of insanity in the killing of his wife.

"There was no way to present this man to the jury," said Dempsey. "Effectively, I had to concede everything that the defendant was going to say about him, and work hard not to make him a part of the case."

Dempsey did so successfully - he won $580,000 verdict - by focusing attention on the wrongdoing of the defendant. "Instead of talking about my client, I talked about the hospital," he said. "I focused on what the aides had done in restraining him."

To the extent that it was necessary to talk about the decedent, Dempsey worked to make the jury feel responsible for his plight and that of others like him.

"People in mental hospitals are maybe the most helpless of all people, the ones that really have no one to turn to" he said. "They're even worse off than prisoners, because there's always some good jailhouse lawyers in a prison, and they can communicate for themselves.

"But I try to make the jury see that no one is looking out for them — not even the mental hospital that we have charged with that duty. So I turn to the jury and ask them, ‘Who is looking out for these people? You are,' I answer. ‘Because they have no one else to turn to.'"

Jailhouse Suicide

Suicide cases often involve mental capacity issues, practitioners say. George L. Fitzsimmons of St. Louis won a $781,000 judgment for the family of a federal prisoner who committed suicide in his cell. He argued that prison officials had been negligent in changing the man's medications.

Fitzsimmons admits that there were a number of problems with the case.

"First of all, the decedent was a felon in prison," he said. "And second of all, the defense was able to mount a powerful common sense case that you can't hold the prison responsible for a man's suicide because it's impossible to tell when someone is going to kill himself."