Tragedy struck Gualbert Alvarez twice in his young life.
On July 15, 2001, he dove into shallow water and struck his head, causing spinal cord damages, which left him permanently paralyzed from the neck down. He was 24 years old.
Gualbert was rushed to Jamaica Hospital where he was in a coma for three months after his diving accident and underwent numerous surgeries. After being medically stabilized, he was transferred to the Rusk Institute for rehabilitation, then to Pelham Bay Nursing Home and, in December 2001, he was transferred to Beth Abraham Nursing Home where he remained for 26 months until July 6, 2004.
In March 2004, tragedy struck a second time when Alvarez, who could not turn independently and needed assistance to get out of bed, developed bed sores (also called pressure sores, pressure ulcers and decubitus ulcers). They started as Stage II in his feet and heels but then, over 11 days, he developed a Stage IV ulcer in his left buttock.
In January 2005, Alvarez sued the nursing home claiming that his bedsores were a result of the staff’s negligent skin care – in failing to regularly position his body.
On March 9, 2011, a Bronx jury agreed and found that the defendant was negligent and that plaintiff was entitled to pain and suffering damages in the sum of $750,000 ($500,000 past – seven years, $250,000 future – 42 years).
In Alvarez v. Beth Abraham Health Services (1st Dept. 2012), the appellate court recently affirmed both the liability determination and the damages awards.
Here are the details of plaintiff’s injuries:
- development of Stage IV ulcer on left buttock, about two inches in diameter and two inches deep, with necrosis and foul odors
- 16 weeks of follow-up treatment including applications of wet to dry dressings – placing saline gauze into the would and then ripping it out after it sticks, so as to remove necrotic tissue
- sharp surgical debridement involving excruciating pain (the wound cannot be anesthetized)
- continuing pain at the ulcer site from area where the spine meets the legs
- sore remained open for 2-3 months before healing with large scar over an embarrassing hole in left buttock preventing plaintiff from sitting for a long time
- likelihood that the ulcer will reopen in the future and residual increased susceptibility to development of further bed sores for the rest of plaintiff’s life
The appellate court decision does not refer to any prior cases dealing with the proper amount of damages in a case like this (there are in fact very few); however, there are two relevant prior cases that apparently influenced the judges:
- Parson v. Interfaith Medical Center (2d Dept. 1999) – $400,000 pain and suffering award (all past – six months, no future – death from unrelated causes) reduced from $1,000,000 for 92 year old nursing home resident with six pressure ulcers, including three very large Stage IV ulcers
- Kolbert v. Maplewood Healthcare Center, Inc. (4th Dept. 2005) – $500,000 pain and suffering award (all past – one year, no future – death from unrelated causes) reduced from $1,500,000 for 78 year old nursing home resident with Stage IV pressure ulcers in her heels as well as a fractured elbow
- After the jury charge, it took only an hour and a half to render the verdict.
- It appears that the jurors were disturbed by the fact that defendant’s records indicated that proper and necessary turning and positioning (i.e., once every two hours) only took place 65% of the time.
- Part of the defense was that plaintiff was a noncompliant patient who stayed in his wheelchair too long, refused to wear prescribed booties for his feet and left the premises too often for outside social visits.
- At the time of trial, plaintiff lived with his wife, who he married in 2007.