By Douglas J. Levy
The Daily Record Newswire
Walter Polomski died in 2008 after choking on a golf ball-sized meatball at a nursing care facility. His family had to relive that nightmare during the ensuing negligence trial.
But in trying to get answers as to who was ultimately responsible, John M. Perrin, the attorney for Polomski’s estate, was having nightmares of his own.
After a mistrial involving Polomski’s missing medical records, Perrin learned that Nightingale East Nursing Center Inc. — the group he originally filed suit against — was a defunct company.
In a post-evidentiary hearing, employees of the facility testified that they were actually employed by Atlanta-based SavaSeniorCare, LLC (SSC).
Sure enough, Perrin said, when the missing records were discovered in Atlanta, they were branded with SSC’s information.
But counsel for SSC insisted there was no connection. It further claimed that Nightingale East and SSC Warren Operating Co., LLC were responsible, and that SSC was only a trade name, did not have any employees and was unrelated to the nursing home in any way.
It only got more frustrating.
According to Perrin, Nightingale East was owned by Mariner Health Care, which went into bankruptcy in 2004. SSC acquired it the next year, but kept the Nightingale East sign out front and left Nightingale East Nursing Center Inc. as a state-filed company. SSC Warren was then formed as a doing-business-as for Nightingale East.
When Polomski was admitted there a year later, his admission documents said “Mariner Health Care” on them.
“They’re operating as if they’re Mariner,” Perrin said. “[But] they’re keeping a name out front that suggests it’s connected to this Nightingale.”
Perrin’s client was admitted to the nursing care facility after having a stroke.
Polomski was unable to walk, had moderate dementia and a swallowing disorder, along with a known increased risk of choking.
An aide was directed to sit with him to prevent choking, and his meals were required to be ground up.
In March 2008, Polomski was mistakenly served a tray of hard, golf ball-sized meatballs intended for another resident.
Four aides were required to supervise residents in the dining room, but only three were present. A nurse also was required by law to be present, but never showed up that day.
Polomski began to cough, then choke. The aides allegedly didn’t know the Heimlich maneuver. When a nurse was found, attempts at the Heimlich were unsuccessful.
Records showed that EMS wasn’t called until Polomski had been without air for 14 minutes.
A paramedic removed the meatball with forceps and Polomski was taken to a hospital, but he had suffered severe, near-total brain damage. He was on a ventilator for several hours until being weaned off at the family’s request.
At trial, nine witnesses — all current and former employees, from aides to a regional clinical manager — testified that SSC employed them, and was responsible for hiring and firing. All said their payroll checks said “SavaSeniorCare LLC” on them.
Perrin said that defense counsel asserted at closing that SSC Warren was to blame and was the actual employer.
Then, Perrin said, the defense asked for the jury form to permit jurors to consider assigning joint liability and only say “The Defendants” for all three entities — SSC, SSC Warren and Nightingale East.
“If they’re connected,” asked Perrin, “how are you representing all three, and how is it not a conflict of interest?”
The jury ultimately concluded that SSC was the owner-operator of the facility.
Polomski’s estate was awarded $2.35 million, broken down as $1.5 million for his pain and suffering and $850,000 for loss of society and companionship.
D. Jennifer Andreou of Plunkett Cooney, co-counsel for the defendants, said that because the judge concluded that the case was solely for medical malpractice, caps will apply.
A motion is pending to determine whether the cap will be at an upper limit of $710,000 or a lower limit of around $408,000.
Andreou said that appeals may still be filed, despite the reduced verdict.
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