Court upholds judgment for nursing home abuse
Ex-operator asked to pay for worker’s actions
A federal appellate court has upheld a $1.21 million judgment rendered against the former operator of an Oklahoma City nursing home where a hidden camera recorded a certified nursing assistant slapping an elderly resident in the face with latex gloves and then stuffing the gloves in the resident’s mouth.
Another certified nursing assistant watched the abuse, but did not stop it.
The incident occurred in 2012 at Oklahoma City’s Quail Creek Nursing and Rehabilitation Center, a 118-bed facility which was operated at the time by Westlake Nursing Home Limited Partnership and Westlake Management Co.
Ownership and operational control of the nursing home has changed hands since the incident took place and the new operators say they have implemented a number of changes.
The certified nursing assistant who slapped resident Eryetha Mayberry, Lucy Gakunga, and the nursing home employee who watched, Caroline Kaseke, were arrested and charged with caretaker abuse.
Gakunga pleaded guilty, served her sentence, and then was deported, the appellate judges noted. Kaseke disappeared while out on bail and her current location is unknown, the judges stated.
Mayberry died three months after the abuse was discovered. Her three daughters filed a lawsuit seeking financial compensation for her mistreatment.
An Oklahoma City federal jury listened to evidence in the case and awarded $1.2 million in compensatory damages and $10,000 in punitive damages.
Westlake appealed, arguing the judgment was excessive and that compensatory damages should have been limited to $350,000. The nursing home operator based its argument on a state law that caps noneconomic damages at $350,000, unless the defendant acted in “reckless disregard for the rights of others.”
The 10th Circuit U.S. Circuit Court of Appeals upheld the verdict and rejected the cap argument last week, stating that Westlake had waived that defense by failing to raise the issue before the trial was competed.
Appellate judges also rejected the claim that the verdict was excessive.
‘Abused on a daily basis’
“Based on the evidence presented at trial, the jury could reasonably have concluded that Mrs. Mayberry was abused on a daily basis from the time she moved into the facility in 2008, until the day her family revealed the videotape of the abuse to the facility, April 16, 2012,” the judges wrote in their opinion.
“The jury also could have found that the abuse caused emotional distress that was significant enough to have contributed to Mrs. Mayberry’s death,” the judges stated. “An award of $1.2 million is not ‘beyond all measure unreasonable and outrageous’ as compensation for three and a half years of daily torment.”
Circuit judges said the $10,000 in punitive damages that were awarded might have been larger, but jurors were instructed that under Oklahoma law they were to take into account the financial condition of Westlake Nursing Home Limited Partnership, which had a market value of $2,855,786.50 at the time.
“This award is eminently reasonable in light of Westlake’s egregious conduct and poor financial condition,” the appellate judges stated.
Mayberry, who was in her 90s, suffered from severe arthritis and had difficulty communicating due to dementia when she entered the nursing home.
The hidden video camera that recorded the abuse was placed in Mayberry’s room by family members who were concerned about missing
items and bruises on Mayberry’s hands and arms that Quail Creek employees were unable to explain, the court opinion states.
History of infractions
Judges also noted that evidence presented during trial indicated that the former nursing home’s operators had plenty of notice that Gakunga and Kaseke were not model employees.
“Both Gakunga and Kaseke had numerous write-ups in their personnel files for infractions including excessive tardiness, leaving in the middle of a shift, failure to show up for work, cellphone use, sleeping on the job, and refusal to complete assigned duties, including an incident in which five residents were left in wet diapers for over an hour while Gakunga chatted with co-workers in the hallway despite reprimand,” the court opinion said.
Despite her less than stellar employment record, “Kaseke was responsible for training new CNAs on the proper treatment of residents at Quail Creek,” the appellate judges noted.
The current operators/managers of Brandon Place, which was formerly known as Quail Creek, issued a statement saying they are unrelated to the entity named in the lawsuit.
A third-party real estate investment trust purchased Quail Creek after the incident and Southwest LTC-Quail Creek LLC subsequently leased the building from AdCare on January 1, 2016, the new operators said.
“Since taking operational control, Southwest LTC-Quail Creek LLC has instituted pre-hire screening in accordance with state and federal requirements including fingerprinting, background checks and reference checks,” the new operators said. “Once hired, the employee is educated and trained not only on job duties and competencies, but also on abuse and neglect reporting and prevention. In the event of an allegation, the facility is obligated to self-report to the state and conduct an immediate and complete investigation of the circumstances.
“The employee is suspended during this investigation to ensure the safety of our residents pending the outcome. Additionally, employees attend continued education and training during their employment. In the event of poor performance, the facility follows a progressive disciplinary action process that focuses on job duty and accountability.”