Trilogy Healthcare of Fayette I, LLC v. Techau, 053119 KYCA, 2017-CA-001841-MR

Docket Nº:2017-CA-001841-MR
Opinion Judge:KRAMER, JUDGE.
Party Name:TRILOGY HEALTHCARE OF FAYETTE I, LLC d/b/a THE WILLOWS AT HAMBURG; TRILOGY HEALTHCARE CENTERS, LLC; TRILOGY HEALTH SERVICES, LLC; TRILOGY MANAGEMENT SERVICES, LLC; TRILOGY MANAGEMENT HOLDINGS, LLC; TRILOGY INVESTORS, LLC; AND CARA CLARK, EXECUTIVE DIRECTOR OF TRILOGY HEALTHCARE OF FAYETTE I, LLC [1] APPELLANTS v. JOEL TECHAU, INDIVIDUALLY AND A...
Attorney:BRIEF FOR APPELLANTS: EDMUND J. BENSON CHRISTINE STANLEY LEXINGTON, KENTUCKY BRIEF AND ORAL ARGUMENT FOR APPELLEES: ORAL ARGUMENT FOR APPELLANTS: EDMUND J. BENSON LEXINGTON, KENTUCKY BRIEF AND ORAL ARGUMENT FOR APPELLEES: THOMAS K. HERREN LEXINGTON, KENTUCKY
Judge Panel:BEFORE: ACREE, GOODWINE AND KRAMER, JUDGES.
Case Date:May 31, 2019
Court:Court of Appeals of Kentucky
 
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TRILOGY HEALTHCARE OF FAYETTE I, LLC d/b/a THE WILLOWS AT HAMBURG; TRILOGY HEALTHCARE CENTERS, LLC; TRILOGY HEALTH SERVICES, LLC; TRILOGY MANAGEMENT SERVICES, LLC; TRILOGY MANAGEMENT HOLDINGS, LLC; TRILOGY INVESTORS, LLC; AND CARA CLARK, EXECUTIVE DIRECTOR OF TRILOGY HEALTHCARE OF FAYETTE I, LLC [1] APPELLANTS

v.

JOEL TECHAU, INDIVIDUALLY AND AS CO-EXECUTOR OF THE ESTATE OF KENNETH C. TECHAU; NEAL TECHAU, INDIVIDUALLY AND AS CO-EXECUTOR OF THE ESTATE OF KENNETH C. TECHAU APPELLEES

No. 2017-CA-001841-MR

Court of Appeals of Kentucky

May 31, 2019

APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE ERNESTO M. SCORSONE, JUDGE ACTION NO. 14-CI-01890

BRIEF FOR APPELLANTS: EDMUND J. BENSON CHRISTINE STANLEY LEXINGTON, KENTUCKY

BRIEF AND ORAL ARGUMENT FOR APPELLEES:

ORAL ARGUMENT FOR APPELLANTS: EDMUND J. BENSON LEXINGTON, KENTUCKY

BRIEF AND ORAL ARGUMENT FOR APPELLEES: THOMAS K. HERREN LEXINGTON, KENTUCKY

BEFORE: ACREE, GOODWINE AND KRAMER, JUDGES. [2]

OPINION

KRAMER, JUDGE.

Joel and Neil Techau ("Appellees"), Individually and as Co-Executors of the Estate of Kenneth Techau (their deceased father) brought action against Trilogy Healthcare of Fayette I, LLC d/b/a The Willows at Hamburg under KRS[3] 216.515, alleging violations of certain residents' rights during Kenneth's brief stay at The Willows. The complaint also listed causes of action for negligence and punitive damages. The jury returned a verdict in favor of Appellees, including punitive damages. After the trial, the circuit court awarded attorney's fees to Appellees pursuant to KRS 216.515(26). After careful review, we affirm in part, reverse in part, and remand.

FACTUAL AND PROCEDURAL HISTORY

The sufficiency of evidence, including expert testimony and any reasonable inferences that could be drawn from it, continue to be contested between the parties. "Upon appellate review, we are constrained to view the sufficiency of evidence in the light most favorable to the verdict. The prevailing party is entitled to all reasonable inferences which may be drawn from the evidence." Saint Joseph Healthcare, Inc. v. Thomas, 487 S.W.3d 864, 868 (Ky. 2016) (internal citations omitted).

Kenneth suffered a stroke in 2012. He recovered, but could not manage his medications on his own, suffered memory problems, had a pacemaker, and was unable to ambulate unassisted. Kenneth's family had additional concerns that his current wife was over-sedating him. His health was managed at home with 24-hour nursing care and family intervention until late 2013. At that time, the family made the decision that Kenneth needed more supervised care than they could provide. Kenneth's family decided to admit him into long-term care at The Willows.

Kenneth's family moved him into The Willows on January 20, 2014. He was 87 years old at the time. The Willows did not request a physician's assessment or a physician's admission order prior to admitting Kenneth, nor did The Willows make it known to the family that either was required by Kentucky regulations. From the beginning, there was confusion on the part of The Willows over the identity of Kenneth's primary care physician. There was also confusion regarding which physician could provide The Willows a current and accurate list of Kenneth's medications. Kenneth was being seen by the Veteran's Administration Hospital ("VA") in Lexington, Kentucky, for management of his diabetes and for other health-related issues, but the family did not advise The Willows that either of the doctors seen regularly by Kenneth at the VA was his primary care physician. However, an outdated medication list from a Dr. Wright in Cynthiana, Kentucky, was provided to The Willows. A more recent list was provided from Dr. Jackson at Cardinal Hill Rehabilitation Center. The family also provided their own list to The Willows. Dr. Jackson eventually verified his medication list with a signature, although he made it clear via a telephone call to The Willows that he was not Kenneth's primary care physician. Rather, Dr. Jackson treated Kenneth during his stay at Cardinal Hill following the stroke.

The Willows assigned Dr. John Richard to be Kenneth's attending physician. Dr. Richard worked through Bluegrass Extended Care Services, LLC, which contracted to provide medical care to residents at The Willows. Bluegrass employed a nurse practitioner, Amie Osborne, who worked closely with Dr. Richard and also cared for patients at The Willows.

At the time of admission, Kenneth's diabetes was being managed by medications prescribed through the VA. Specifically, he was taking Lantus (long-acting insulin) and Novolog (rapid-acting insulin). He had also been taking Metformin (also used to lower blood glucose levels), but it had been discontinued by the VA prior to Kenneth's admission at The Willows. Due to the confusion in obtaining an accurate medication list for Kenneth, his son Joel stayed at The Willows with Kenneth on the first night to check his blood sugar and administer his medications. Joel came back the following morning (January 21, 2014), tested Kenneth's blood sugar, administered his medication, and took him to an appointment at the VA. After returning from the VA, Joel again tested Kenneth's blood sugar and administered his medication. Joel left his father in the dining room at The Willows for lunch and went home.

Sometime after lunch, nurse Kim Barrow tested Kenneth's blood sugar. Prior to admission at The Willows, Kenneth's blood sugar had been tested only before meals. Nurse Barrow testified that, at 1:45 p.m., she performed two separate finger sticks and obtained elevated blood sugar readings of 358 and 398. Upon noting the elevated levels, she called Nurse Practitioner Osborne. Nurse Practitioner Osborne returned Nurse Barrow's telephone call at 2:10 p.m. From that telephone call, a new medication order was written. The telephone call and the medication order that resulted are the greatest source of contention between the parties. Nurse Barrow testified that Nurse Practitioner Osborne gave the medication order orally over the telephone. Nurse Practitioner Osborne testified that she never gave the order. The medication order stated that Kenneth's Lantus and Novolog were to be discontinued. The order further changed Kenneth's medication regime to include 1000 mg of Metformin, twice per day; 25 units of Levemir (long-acting insulin) in the morning; and 30 units of Levemir at bedtime. Expert testimony revealed that the new medication order meant that Kenneth went from receiving 10 units of insulin per day prior to admission at The Willows, to 55 units of insulin per day. This medication change occurred without Kenneth being seen or evaluated by a physician or nurse practitioner. The Willows did notify Kenneth's family of the change in the brand of insulin. But, The Willows did not advise the family regarding the change in dose, nor did it advise that Metformin had been added to his medication regime.

Kenneth experienced episodes of hypoglycemia after the medication changes. Nurse Barrow testified that on January 23, 2014, Kenneth's blood sugar was 51. She did not contact Dr. Richard or Nurse Practitioner Osborne. Instead, Nurse Barrow gave Kenneth orange juice, to no avail, followed by orally-administered glucose. After the glucose was given, Kenneth's blood sugar elevated to a level of 186.

At 2:00 a.m. on January 24, 2014, nurse Karen Barnes at The Willows made a nurse's note.4 Kenneth was found to be "[n]oncoherent, verbal stimuli, and sternum rub, did not arouse, eye was pen [sic] point…" Kenneth's blood sugar was 52. Nurse Barnes noted that "glutose was given waited 10 mins retook [finger stick] 48, 5 mins later retook [finger stick] 28…" Expert testimony was that glutose is an orally-administered gel-form of glucose that has the consistency of toothpaste. It is used on patients who are alert with the ability to swallow, not on patients who are unconscious. Despite the contents of her nurse's note, Nurse Barnes testified that she actually gave glucagon, not glutose, to Kenneth. According to expert testimony at trial, glucagon is a form of glucose that is administered intramuscularly through injection and typically produces a rapid elevation in blood glucose levels. Nurse Barnes called 911. Upon arrival, emergency medical personnel administered glucose intravenously. Kenneth was transported to Central Baptist Hospital. He died the next...

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