George F. Quintairos, Managing Partner – Litigation
(305) 670-1101 ext. 119
QPWB’s First Trial in 2005 Ends with Defense Verdicts
for ALF and Administrator
Fort Lauderdale, FL – On March 11th, 2005 a Fort Lauderdale jury
returned Defense Verdicts on behalf of an Assisted Living Facility (ALF),
Homewood Residence, and its Administrator, Freda Wallace. Defendants were
represented by the QPWB trial team of Peter Molinelli (Tampa) and Jeffrey
Creasman (Miami). Special thanks to John Brekka (Ft. Lauderdale) who helped
work-up the case and served as Appellate Counsel at trial.
The lawsuit was brought by George Divita, nephew and Personal
Representative of the Estate of Rosina Adamo, deceased. The case involved
the appropriateness of placement of an 82 year old, somewhat confused,
elderly woman, Rosina Adamo, who sustained a fractured hip when she fell on
her way to the bathroom at the ALF. She died approximately one month after
undergoing hip surgery to repair the fracture.
Fenster & Faerber, P.A., who represented the Plaintiff at trial,
argued that Ms. Adamo was not appropriate for ALF placement because she
needed 24-hour nursing supervision, a service not provided for her at
Homewood. The Plaintiff introduced the Form 1823, which indicated the need
for full-time nursing care. Other medical records showed that Ms. Adamo
exhibited signs of Dementia and Alzheimer’s Disease, conditions which
Homewood staff were not prepared to handle. The Plaintiff took the position
that it was the ALF’s improper admission of Ms. Adamo and their inability to
properly care for Ms. Adamo that led to her fall and painful fracture of her
hip less than one month after her admission to Homewood.
While Ms. Adamo did have some signs of Dementia, the QPWB Defense team
argued that she was appropriate for placement based on both the assessment
of the facility and the independent assessments of the discharging facility
and physicians. During the trial, the Defense team successfully
cross-examined the both the Plaintiffs and their expert to undercut
testimony regarding placement and retention issues. The QPWB trial team also
presented the testimony of the Defendant and former Administrator, Freda
Wallace, who testified as to the quality of care provided to Ms. Adamo and
that during the majority of her residency, she was mentally sharp, alert and
aware of her surroundings.
After a short one and a half hour deliberation, the jury returned
Defense Verdicts for both the ALF and Administrator.
This marks back-to-back victories in ALF trials where the plaintiff’s theory
of liability focused on the appropriateness of placement or continued
placement of the resident at such facility. In each case, the plaintiffs
have also attempted a “profits over people” theme as part of their
presentation, suggesting to jurors that the particular ALF, and ALF’s in
general, are admitting residents for which they are incapable of meeting
their needs. In both instances, the QPWB trial team was able to overcome
Plaintiff’s negative portrayal of the facilities and industry by testimony
from the facility members and other evidence demonstrating the assistance
and care provided to the resident.
As the incidence of litigation against ALF’s for improper placement and
retention appears to be increasing, Risk Management should educate facility
staff to carefully consider placement of residents, including securing the
necessary documentation and physician approval forms before admission to the
ALF facility – failure to do so may result in costly litigation.