Trial Magazine

When Marjorie Fitzpatrick, a 90-year-old resident at Timber Ridge Assisted Living in McKinleyville, Calif., fell in an outdoor courtyard connected to the facility, 45 minutes passed before staff found her. Fitzpatrick had exited the facility through a door that led to the courtyard, and an alarm had sounded when she opened the door—but staff ignored it. She suffered a brain hemorrhage and died two weeks later at the facility. Fitz­patrick’s daughters sued Timber Ridge for wrongful death and elder abuse.

The plaintiffs’ attorneys, Timothy Needham of Eureka, Calif., and Mike Thamer of Callahan, Calif., felt at the outset that the case was not as ­straightforward as it appeared. “All we knew when we took the case was that we had a lady in her 90s, in poor health with dementia, who got out into an enclosed courtyard and fell. But ­something just didn’t seem right,” Needham said.

From the beginning, the defendant appeared to be evading discovery requests. Needham and Thamer requested Fitzpatrick’s medical records several times, but each time Timber Ridge provided the records, the plaintiffs’ expert noticed that information appeared to be missing. Finally, after serving a subpoena, the attorneys learned from the records custodian that another file existed, but the facility had failed to produce it. “It went from a 250-page file to one that was more than 1,500 pages,” Needham said.

The incomplete medical records were only the tip of the iceberg. The attorneys soon discovered that Timber Ridge had a pattern of flouting its obligations to the state and its residents. Despite state requirements to maintain eyewitness incident reports for three years, Timber Ridge destroyed its reports regularly—including the ones from the day of ­Fitzpatrick’s fall. The facility claimed that Fitzpatrick had not tried to escape previously, but at trial, a former employee testified that Fitzpatrick had attempted to escape several times before and that incident reports were prepared ­afterward. The witness was unaware that those reports had been destroyed.

Staff members also testified that the alarm on the door to the courtyard sounded around 10 times the day of ­Fitzpatrick’s fall, but the alarm’s ­software recorded only four. On ­cross-examination­, the facility’s expert explained that the system controlling the alarm registers only when the door is pushed open, not when someone merely pushes on the handle but is not able to open the door completely—meaning that Fitzpatrick was able to fully open the door four times and likely attempted to open it several more times without anyone noticing where she was.

Even though Timber Ridge assured residents’ families that it responded to the alarm within 15 seconds, evidence showed that it took staff more than a minute to respond on multiple occasions.

The facility also destroyed videotape from that day, which would have showed how Fitzpatrick was able to access the courtyard and how long she had been crawling on the ground before she was found. And the facility’s administrator testified that they regularly destroyed tapes—even though the law required otherwise. “It was incredibly frustrating to us that they destroyed all this material, but it also became clear to me that there was a pattern and practice of destroying this evidence,” Needham said.

The attorneys also learned that Timber Ridge staff did not conduct preadmission assessments to determine whether potential residents should be admitted to the facility. At trial, the administrator changed her story about who completed Fitzpatrick’s preadmission assessment several times, until it emerged that one had not been done at all. “In California, the law is that if a person can’t self-administer medication, that person can only be in a facility where there is a nurse. Marjorie could not take her own meds and there were no nurses in Timber Ridge, so she shouldn’t have been in there,” Needham explained.

Fitzpatrick had been prescribed anti-anxiety medication, and multiple staff members testified that on the day of the fall, she hadn’t been given the medication and that she seemed frantic—despite the facility claiming that she was calm and seemed to be acting normally.

The attorneys based their case theme around the broken promises that Timber Ridge had made—from not timely responding to alarms to not conducting preadmission assessments to not having staff trained in dementia care. “None of the staff who were working the day in question met California’s minimum requirements for staff training—despite the fact that the facility has promotional materials that say what excellent dementia care it provides,” Needham said.

Even with significant evidence in favor of the plaintiffs’ case, Needham and Thamer faced the challenge of arguing wrongful death damages to the jury. Following advice from fellow trial attorneys in AAJ’s Nursing Homes Litigation Group, they emphasized that regardless of Fitzpatrick’s dementia, she had been happy and engaged, making crafts and maintaining a strong, caring relationship with her family that was not lessened because of her dementia. “The jurors got it. They were very understanding of that,” Needham said.

The jury awarded $2.1 million on the wrongful death claim, $400,000 on the elder abuse claim, and $2.5 million in punitive damages. The judge ultimately reduced the verdict to $2 million, but the outcome still brought closure to Fitzpatrick’s family when they finally learned the truth about how their mother had died.

Thamer noted that when approaching elder abuse cases, it’s important to be persistent and uncover why the wrongdoing occurred. “Defendants always focus on the how. But we focus on the why: What was the underlying reason? And it usually comes back to an intentional failure to follow the law. And as we started pulling the rug apart, that’s what we found here.”

Citation: Monschke v. Timber Ridge Assisted Living, LLC No. DR140247 (Cal. Super. Ct. Humboldt Cnty. Jan. 17, 2017).