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A neurologist testifying as an expert witness accused the president of Beebe Medical Center of ethics violations in connection with decisions related to the death of an Alzheimer’s patient at Lewes Conval-escent Center.
Julie Bailey, who worked for nearly 20 years for Beebe, was transferred from Beebe to the convalescent center Dec. 28, 2002. Within hours, she wandered into a kitchen freezer and was trapped inside until she was found, near death, about four hours later.
Bailey suffered frostbite and gangrene and died 24 days later of related complications.
In a jury trial that began March 9 before Superior Court Judge E. Scott Bradley, her family is suing the convalescent center and its owner, Beebe Medical Center, for compensatory as well as punitive damages.
Beebe Medical Center, a not-for-profit community hospital, and the Lewes Convalescent Center are not contesting compensatory damages, but they reject the claim for punitive damages.
During the second day of testimony, under cross examination by hospital attorney John Elzufon, neurologist Dr. Kenneth Fischer was asked if he was accusing hospital President Jeffrey Fried and the hospital board of directors of ethics violations related to the transfer of patients from the hospital to the Lewes Convalescent Center.
“Yes, I am,” Fischer replied.
Elzufon said Fried would respond later to those charges.
Doctor testifies
Fischer, who estimated he has treated 15,000 Alzheimer patients, appeared at the request of Bailey family attorneys as an expert in Alzheimer’s care, pain management, and hospital and nursing home administration. His testimony was based on an extensive review of documents related to the case.
He told the jury that at the time Bailey was transferred to the convalescent center, that facility had an unusual number of patients requiring a high level of care. He also testified that the facility was 30 years old when the hospital acquired it, and he could find no record that investments had been made to modernize it.
In several hours of testimony, he also said the supervisor in charge of discharge planning was unaware that the convalescent home had no alarms and no lockdown unit for Alzheimer’s patients.
Labor-intensive treatment
Fischer said at the time of her death, Bailey was 60 years old but mentally, she was functioning at a 2-year-old level.
Treatment of Alzheimer’s patients is complicated and labor intensive because of the disparity between the patient’s physical and mental condition, he said. The patients have good physical strength and mobility, but they are also clumsy and have a tendency to fall, a leading cause of their demise, he said.
“It’s the worst of all worlds,” Fischer said, noting Alzheimer’s patients require extensive supervision, locked units, alarms and one-on-one care.
He also testified that hospitals are reimbursed by Medicare based on the diagnosis of the patient; for a particular illness, the hospital is reimbursed a set amount, regardless of how many days the patient remains in the hospital.
This method of payment “impels hospitals, legitimately, to discharge patients” to other facilities where they can be treated less expensively than in hospitals, he said.
Properly discharging a patient requires that the patient be medically stable and that the facility the patient is discharged to be capable of properly caring for the patient, Fischer said.
Double dipping?
Fischer also testified that unlike the hospital, a nursing home is paid based on the number of days the patient receives care. A hospital could treat a patient and receive payment for the diagnosis and then transfer the patient to the nursing home, which receives payment for each day of care. If the hospital owns the nursing home, he called this practice double dipping, or “getting paid at the hospital and then collecting a daily rate at the nursing home.”
Fisher testified nursing homes can refuse to accept patients they are unable to care for because of staffing or other reasons. But when a nursing home is owned by the hospital, he said, “There’s a temptation to double dip.”
“One has to be very careful that when the decision is made to move a patient, it’s made on the basis of medical necessity, not financial necessity,” he said.
He said a review of hospital board minutes from August 2002 showed that while Lewes Convalescent Center was not operating at a profit, the financial director of the hospital told the board that by shifting patients from Beebe Medical Center to Lewes Convalescent Center the hospital was “making half a million dollars a year.”
Fischer also testified that Bailey was discharged by Dr. Bhaskar Palekar, who ordered that she walk only with assistance because she was a high fall risk and could not ambulate freely on her own.
Fischer testified that Palekar said in court records he was not aware the convalescent center had been cited for numerous safety violations.
Answering a series of questions from Bailey family attorney Butler Daniel, Fischer testified that hospital records and court documents show Fried did not present the hospital board with nursing home reports from 2001 and 2002 that showed serious safety violations.
Discharge planning
Fischer also testified court documents show that hospital Vice President of Medical Affairs Dr. Larry T. Heglin failed to review reports of state inspections of the facility that included safety violations and was unaware that Lewes Convalescent Center had no video equipment, no alarms and no lock-down unit to provide a secure environment for Alzheimer’s patients, who require such security precautions because they are known to wander.
Heglin “had no clue of their capacity or lack of capacity in that regard,” Fischer said.
In a sworn deposition reviewed by Fischer, Heglin said he had never been asked to go to the facility to see for himself what he thought of the care provided.
“This gentleman had no knowledge, no knowledge whatsoever, of the facility this patient [Julie Bailey] was going to,” Fischer testified.
Fischer also testified that the convalescent center was receiving an unusual number of high risk, high acuity patients, who require a high level of care, and that 96 percent of them came from Beebe Medical Center.
Fischer testified in detail that his review of the hospital board minutes showed that while the hospital’s capital budget included such items as replacing computers, interface enhancement and a $300,000 pharmacy robot, the budget did not include establishing a secure unit at the nursing home or purchasing a WanderGuard system used to monitor the whereabouts of patients who wander or otherwise escape supervision. The budget also did not include establishing storage space for medical carts and other equipment frequently left in the hallways at the convalescent center, where they prevent residents from using handrails and could impede evacuation.
Fischer also testified that in response to reports finding safety violations at the convalescent center, the facility’s plans of correction said it would provide training and develop specialized care plans for Alzheimer patients, but it didn’t come to fruition.
Intense pain
Although Alzheimer’s patients have difficulty expressing pain, Fischer testified, there is no question they can and do feel pain.
During the four hours after she wandered into the freezer and became locked in, he said, “It’s dark, they can’t get out, they’re disoriented and they don’t know where they are. It’s an extremely frightening experience.”
Fischer testified that frostbite and gangrene are extremely painful injuries. In addition to the constant pain of frostbite, Bailey also had to endure whirlpool treatments aimed at improving circulation to her hands, Fischer said.
He testified that the treatments were necessary and appropriate, but according to Bailey’s records, she was supposed to receive morphine as a painkiller a half hour before each treatment.
Bailey’s medical records show that on five occasions, the nursing home failed to provide painkillers before her therapy session, Fischer testified.
Fischer called those omissions a violation of standard care.
Fischer said the freezer incident was the proximate cause of Bailey’s death, although she died 24 days later of a pulmonary embolism, a “terrible, terrible frightful and painful” way to die.
Good care at hospital
On cross examination by the hospital’s attorney, Elzufon, Fischer testified that Palekar, the physician who originally treated Bailey at the hospital for gastrointestinal bleeding, had provided good care, and that a review of the records showed that when Palekar ordered her discharge, she was medically able to be discharged.
He also testified that the charge nurse at the convalescent center, based on the level of her training and qualifications, should have received training in the care of Alzheimer’s patients.
Elzufon asked whether Fischer had reviewed any documents that indicated Bailey was eligible for Medicare. Fischer said he had not.
Under cross examination, Fischer also testified that if a nursing home is capable of properly caring for a patient, there’s nothing inherently wrong with transferring a patient from a hospital to a nursing home to free up acute-care beds.
He also testified that had the hospital been using a WanderGuard system, which costs about $40,000 to install, and had the freezer door been locked before Bailey went inside, the incident that led to Bailey’s death would not have occurred. His review of the records indicated that Beebe Medical Center had sufficient funds to spend $40,000 for the WanderGuard system, he said.
He also agreed with Elzufon that if the convalescent center did not want to accept a patient, there were options available to work that out with the hospital.
Referring to Fischer’s testimony that the hospital and the nursing home have boards that overlap, which can lead to problems, Elzufon asked, “Are you accusing Mr. Fried or the board of ethics violations?”
“Yes, I am,” Fischer said.
A son’s story
The trial’s fourth witness was Shawn Connaway, one of Julie Bailey’s three sons. He told the jury that he was born at Beebe Medical Center, raised in the community, and that as he grew older, often visited his mother at the hospital while she worked.
He also testified that his mother had been the silent leader in the family, a strong, determined woman whose character “allows me to be the person I am today.”
He said by Christmas 2002, when his mother was admitted to the hospital for gastrointestinal bleeding, the family was discussing her future care. Anthony “Tony” Bailey had been caring for his wife at home for about four years after they realized she had Alzheimer’s, he said, and the sons realized it had become time to make other arrangements.
Transfer unquestioned
When it was suggested that she be moved from the hospital to the nursing home, Connaway testified, it seemed reasonable, a way for the family to have a break as they decided on her future care.
“We didn’t have any questions about it,” he said. “We didn’t really think to investigate. We had full trust in the facility.”
They also began discussing how they would pay for Julie Bailey’s care. “We were all willing to pitch in and help Tony,” Connaway said.
Sons Shawn and Chris Connaway and Tony Bailey were in frequent communication Dec. 28, the day Julie was transferred to the nursing home, Shawn Connaway said.
He testified he and Chris called to see how his mother was doing about 5 or 6 p.m., when they were told that she was missing from the home.
“We were in limbo,” he said. “The weather was terrible, a frigid night was coming … I know the wind was blowing superhard.”
Crushing decision
It was 8:45 p.m. before they learned from convalescent home Administrator Owen Schwartz that Bailey had been found. Later, Palekar discussed Connaway’s mother’s condition, and the two sons decided to drive to Lewes.
“It just crushed us,” Connaway testified, his voice cracking several times.
“We were driving up to see the condition of our mother and make the decision whether to allow her to live or not,” he testified. “It was one of the coldest days I’ll ever remember. It’s like we were in the freezer and mom was letting us know how it felt.”
Connaway said as it turned out, his mother improved, and they didn’t have to make that decision. But when they saw her for the first time, “We both walked in and stopped in our tracks. She looked completely different.”
Connaway testified that he tries to block that image of his mother from his mind. Describing her in the days that followed, he said, “I think she felt trapped inside her body and didn’t know what happened.”
“She was an artist. She loved working with her hands,” Connaway testified. She’d look at her hands, see the damage to her fingers, and then look up again, as if trying to understand what had happened, he said.
Tragic event replayed
The day’s most dramatic testimony came when Connaway described a visit to the Lewes Convalescent Center with his brother, Chris, that took place after their mother’s death, weeks after she had been found near death in the freezer.
“We walked in the front door. We did whatever we wanted to do,” he said, and no one questioned them. He testified that the kitchen was completely disorganized, with no one in charge, and that cutting boards and knives were visible.
“We walked right into the refrigerator and into the freezer, taking pictures all the way,” he said. Once inside the freezer, “the first thing you feel is this fan above the back of your head, blowing like a hurricane.”
“We walked in there and stayed in there,” he testified, adding that it was difficult to describe his feelings, thinking of the frigid wind blowing on his mother for hours.
“It’s a shame that it’s all come to this,” he testified. “It takes a case like this to bring things into the light so people can see what needs to be done. It’s sad that it needs to come to this to make people change, and they still haven’t changed.”
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