Untrained staff was assisting resident at residential care facility for the elderly (RCFE).
- Case Name: M. Sherrill Phillips, by and through her Guardian Ad Litem, Lydia Phillips v. AvantGarde Senior Living, A California Corporation
- Court and Case Number: Los Angeles Superior Court / 19STCV11501
- Date of Verdict or Judgment: Wednesday, January 15, 2020
- Date Action was Filed: Wednesday, April 03, 2019
- Type of Case: Elder Abuse, Negligence
Plaintiffs: Sherrill Phillips, 89.
Defendants: AvantGarde Senior Living
- Type of Result: Jury Verdict
- Gross Verdict or Award: $5,500,000
- Jury Polls: 12-0
Attorney for the Plaintiff:
Stalwart Law Group by Brian Poulter and Dylan Ruga, Los Angeles.
Attorney for the Defendant:
Schaeffer Cota & Rosen by Rebecca Blackstone Lowell, Oxnard.
Wicker Smith by Ray Watts, Jr., Orlando, FL.
Plaintiff’s Medical Expert(s):
Cyndy Minnery, R.N., standard of care, San Marcos.
Ezekiel Fink, M.D., neurology, Beverly Hills.
Defendant's Medical Expert(s):
Todd Fearer, M.D., geriatrics, Santa Barbara.
Edwin Amos III, M.D., neurology, Santa Monica.
Facts and Background
Facts and Background:
On June 9, 2018, plaintiff moved into AvantGarde Senior Living in Tarzana. She was 89 years old and suffered from mild dementia. She was first diagnosed with dementia in 1998 after suffering a stroke. AvantGarde is a residential care facility for the elderly. (These types of facilities do not provide medical care, so the verdict is not subject to MICRA.)
Although plaintiff had mild dementia, she was still functional. She needed assistance with her activities of daily living. This facility marketed itself to the community as a safe place for seniors to enjoy activities such as bingo, karaoke, cornhole, field trips, and a whole host of other social activities.
Sherrill's daughter Lydia contracted for various services. Among them were assistance with grooming, bathing, toileting, and walking. Before moving in, Sherrill underwent two separate evaluations to determine her baseline physical and cognitive limitations. It was also well documented that she had macular degeneration in her right eye, which was a key fact in the case. Both Sherrill's primary doctor and AvantGarde's wellness director concluded that she had mild cognitive impairment, that she could follow instructions, that she could communicate her needs, and that she had right-eye vision problems.
When Sherrill moved in, her room's air conditioning didn't work and the room smelled strongly of urine. Sherrill's daughter Lydia complained to the staff and they put a 34-gallon trash bin in the room for plaintiff's roommate's urine-soaked bed sheets to mask the smell. Over the next 46 days, plaintiff had two UTIs secondary to E. coli contamination; she regularly would be filthy and without showers; she was refused bathroom requests in the presence of her daughter, and on one occasion, she was found half naked in doubled up diapers filled with diarrhea.
On July 24, 2018, Sherrill sustained her first fall. She was monitored for concussion protocol. The paramedics were called, and she was not sent to the hospital. AvantGarde never told Lydia. The next day, while being escorted to an activity by one of the activity coordinators, Sherrill took a tumble over the front of her walker and broke her neck in three places and suffered head trauma.
Security camera footage showed the activities coordinator walking plaintiff down the hall, becoming distracted, leaving Sherrill's side, and poking her head into another resident's room to get her to join them down the hall to the activities room for a game of cornhole. Sherrill's walker hit the wall and she fell over her walker while the activities coordinator was distracted.
The Health and Safety Code defines personal activities of daily living. Included in that definition is mobility. The H&S Code further states that, if staff at an RCFE are assisting residents with activities of daily living, they must have a minimum of 40 hours' training specific to dementia and other geriatric issues. The H&S Code further states that at least 20 hours of that training must be completed before a staff member can act independently with a resident.
That plaintiff should not have been left during her walk down the hall due to her vision problems.That the activities coordinator was escorting Sherrill about two inches from the right wall, and when she left plaintiff's side, plaintiff started veering toward the wall without knowing how close she was.
That the activities coordinator didn't have the state-mandated 40-hours training. She had no training about how to escort residents as evidenced by the fact that she became distracted, but also by the fact that she immediately tried to pick up Sherrill after she fell. Her boss and multiple other employees testified that what she did was not appropriate and that no one was trained to do what she did.
That the activities coordinator was not providing direct care, and therefore, she did not need the state-mandated 40 hours of training.
Even though she didn't have the training, the activities coordinator still acted appropriately.
That plaintiff returned to baseline by 10/3/2018.
That Sherrill Phillips's dementia was not accelerated because of the fall.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
The broken neck was undisputed. Sherrill needed neck surgery, but because of her age, she was not a candidate. She spent the next three months in a rigid collar. What was heavily disputed was whether the head trauma she sustained precipitated her rapid decline mentally. In a matter of five months, she went from doing pretty well to becoming a prisoner in her own body. She didn't recognize family and she would say the same thing repeatedly... "9, 10, all over again. 9, 10, all over again."
Demands and Offers
- Plaintiff §998 Demand: $3,000,000 (total underlying and excess insurance policy).
- Defendant §998 Offer: $400,000