Nursing home faces lawsuits

Staff WriterJuly 10, 2010 

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CORRECTION

A story in Saturday's News & Observer mistakenly stated that Britthaven, Inc. is based in Garner. The company's operations are based in Kinston, with the corporation's registered agent in Garner.

****** As a nurse heads to court on murder charges in the morphine-related death of a patient, her Chapel Hill nursing home faces civil malpractice suits following serious injuries to two other patients.

On Monday, Superior Court Judge Lucy Noble Inman will hear from attorneys and set a schedule for sharing evidence in the case of Jadwiga Orlowski v. Britthaven Inc.

Her husband, Marian Orlowski, died of pneumonia on July 16 at age 86. Two years earlier, his wife took him to Britthaven of Chapel Hill after a surgery at UNC Hospitals.

"Later on that same day, Dr. Marian Orlowski was found on the floor of his room," states a legal complaint filed by the Orlowskis' attorney, Carmaletta Henson. "He had fallen and sustained serious personal injuries, including a fracture to his left hip."

Orlowski, a former distinguished professor in pharmacology at The Mount Sinai School of Medicine in New York, was nominated for a Nobel prize in 2004 for his pioneering drug treatment for blood-plasma cancer.

The suit accuses Britthaven of negligence, including failure to monitor Orlowski, who suffered from dementia according to the complaint, and not providing a bed with side rails.

"Defendants deny that they knew, or should have known, of Mr. Orlowski's medical condition," answered Britthaven lawyer Rick Freeman in a court filing. "Mr. Orlowski was treated with reasonable care and diligence."

Freeman said the company's policy prevented him from further discussing pending litigation.

Registered nurse Angela Almore is due in court Tuesday on second-degree murder and patient-abuse charges related to the death of 84-year-old Rachel Holliday and morphine-induced injuries to six other patients. District Attorney Jim Woodall expects any evidentiary hearings to be postponed to another date.

A medical examiner reported that Holliday died of pneumonia and that the levels of morphine in her system likely contributed to her death. None of the patients had been prescribed morphine.

Britthaven of Chapel Hill remains under investigation by the state Division of Health Service Regulation for those incidents.

Britthaven of Chapel Hill is one of four "special focus facilities" in the state. This designation by the federal Centers for Medicare and Medicaid Services notes a pattern of substandard care. Chapel Hill Health and Rehabilitation, along with the Brian Centers in Goldsboro and Gastonia, are also on the list.

Britthaven Inc., based in Garner, runs 43 nursing homes across North Carolina plus others outside the state.

Out of compliance

Last year, CMS ordered Britthaven of Chapel Hill to pay $216,400 in fines because it was out of compliance with Medicare requirements. Those penalties stem from the case of Mary Lou Barthazon, a 95-year-old woman who likely broke both thigh bones near her knees on Sept. 30, 2007, when a nursing assistant dropped her while trying to lift her from a chair to her bed, according to a federal judge.

The nursing assistant ignored Barthazon's care plan, which required a mechanical lift. Her fractures went untreated for two weeks because the nursing assistant did not report the incident. Barthazon's daughter, Anne Blanchard, insisted Barthazon go to the emergency room on Oct. 14. She died four days later.

Blanchard has sued Britthaven, alleging negligence and wrongful death.

In her motion to dismiss the lawsuit, Britthaven lawyer Pamela Robertson denies "that defendants had a duty to supervise or control the clinical care, treatment or judgment of any healthcare provider."

Robertson's motion also denies "that either state or federal nursing home standards, policies, regulations, rules or standards of participation establish the standards of health care applicable to Britthaven of Chapel Hill."

Even if Britthaven staff were negligent, the motion continues, "the alleged but denied negligence was not a proximate cause of any injury or damage to [Barthazon]."

In her decision upholding the CMS fines last year, federal administrative law judge Carolyn Cozad Hughes wrote that Britthaven's investigators concluded Barthazon's fall fractured her knees.

Britthaven tried to avoid a trial by forcing the case to arbitration. Though Blanchard had signed an admission contract with an arbitration clause, Superior Court Judge Abraham Penn Jones concluded she had done so under duress as both she and her mother were suffering serious health problems and her 23-year-old daughter had only months earlier suffered partial paralysis in a rollerblading accident.

Wrote Jones, "The contract is ... procedurally and substantively unconscionable."

Orange County Senior Resident Superior Court Judge Carl Fox has ordered the Barthazon case to complete mediation by April 1, 2011. It could go to trial by the end of May.

jesse.deconto@newsobserver.com or 919-932-8760

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