Oregon Family Receives 900K Verdict for Abuse of Alzheimer's Resident

Tuesday, May 13, 2008
KATHLEEN GLANVILLE The Oregonian
A Multnomah County jury on Monday ruled that an 86-year-old woman with Alzheimer's disease suffered a loss of dignity when Lake Oswego police forced her to the floor of her nursing home and handcuffed her -- even though she couldn't remember it the next day. The jury awarded more than $900,000 to the family of the late Elvera Stephan for the way she was treated the night of April 13, 2006, at The Pearl at Kruse Way in Lake Oswego. The jury agreed by an 11-1 vote that Avamere Health Services, the corporate owner of the Alzheimer's care center, had acted with malice or reckless indifference. Kelly A. Giampa, who represented Avamere, said she was disappointed and surprised by the verdict. Avamere has not decided whether to appeal.
Although Stephan died May 3, the weekend before the trial ended, family attorney Scott Kocher said her spirit was very much present when he summed up the case last week in Multnomah County Circuit Court.
He placed a poster-sized photograph of the elderly woman before the jury during his closing arguments. In the photo, Stephan is smiling warmly as her husband embraces her, four months before she came to live at The Pearl.
Stephan's children moved her into the Alzheimer's care center in early April 2006 after her husband became seriously ill and was hospitalized. Within a few days she became agitated, wandering the nursing home barefoot in her pajamas, confused and, according to her caretakers, dangerously aggressive. The caretakers notified a registered nurse in another part of the nursing home, who called the woman's doctor for guidance. He said Stephan should be taken to the emergency room for evaluation and medication. The nurse called 9-1-1 to summon an ambulance, and because she told the emergency dispatcher that the patient was extremely aggressive, Lake Oswego police responded as well. But jurors said she didn't look dangerous on a surveillance video from the nursing home. She was gesturing with a telephone receiver but didn't try to hit anyone with it.
Two officers forced the elderly woman to the floor, where they rolled her onto her stomach and handcuffed her hands behind her back. She remained on the floor on her stomach for six minutes until paramedics put her on a stretcher and took her to the hospital, according to Kocher. She returned to The Pearl the next day, when a nurse reported that her wrists were bruised but she was ""calm and compliant."" A state investigator found the nursing home at fault for failing to assess the woman's condition and intervene in a timely manner. The state fined the facility $300 on Aug. 1, 2006.
Defense's argument:
Stephan's son, James, testified that he didn't learn about what had happened to his mother for six days, when he was told by the relatives of another patient at The Pearl. During the trial, experts hired by the defense argued that staff had followed proper procedures and weren't responsible for the actions of the police. Giampa also said Stephan's daughter didn't fully inform The Pearl staff about Stephan's aggressive behavior and therefore shared responsibility for what happened. ""Maybe she was afraid The Pearl wouldn't take her if they knew she had aggression,"" she argued in a closing statement, adding that the elderly woman should have been on anti-psychotic medication. The video of the police subduing the woman was played for the jury. Giampa conceded the incident looked bad. ""It looked very undignified. It's sad to see her on the floor like that."" However, she argued that Stephan didn't remember what happened so she couldn't have experienced a loss of dignity. ""Dignity is eternal"" That was a key question in the trial because the Stephan family sought damages in part for their mother's loss of dignity and embarrassment. Kocher quoted the facility's resident bill of rights: ""The first right is to be treated as an individual with dignity and respect."" ""Dignity is eternal,"" Kocher said. ""If dignity were not eternal, we would not have cemeteries. . . . Just because she had Alzheimer's disease or memory loss. . . does that mean she's not entitled to the same kind of dignity as you or I?"" Members of the jury found that a convincing argument. Lead juror Courtney Szper said that if a patient with memory loss couldn't experience a loss of dignity, ""that gives carte blanche for elder-care facilities to do anything.""
Kocher had asked the jury to award Stephan's family $1 million to send a message to corporations that care for Oregon's elderly and vulnerable. The jury agreed on $4,200 in economic damages -- the cost of Stephan's shared room for a month -- and $400,000 in noneconomic damages. The jury then awarded $500,000 in punitive damages. Under state law, 60 percent of punitive damages go to the state victims assistance fund.