Falling Down

Scott Holden walked into court on May 2 certain of victory. He was representing Diane Brauch, whose husband, James, had fallen in a Scottsdale nursing home and ultimately died from his injuries.

The facts of the case were horrific. Left unattended for hours, James Brauch fell and shattered his leg. After he was found, the nursing home staff waited more than four hours to take him to a hospital that was less than a minute away.

Even an expert hired by the defense said the standard of care wasn't met at Casa Del Mar the night James Brauch fell.

As Holden's final witnesses sat in the hallway, Maricopa County Superior Court Judge Rebecca Albrecht called the attorneys into her chambers. One week into the trial, she threw out the case.

Holden says Albrecht explained that since Brauch's death was inevitable once he fell -- and since no one could guarantee he wouldn't have fallen even if the nursing home had followed the law and its own policies -- the plaintiffs had no case.

Diane Brauch, James Brauch's widow, says she can't fathom how Albrecht could make such a decision.

"I don't know what she was thinking," Diane Brauch says. "It's like she didn't have any common sense."

James Brauch was an Air Force vet who wore his love for country on ball caps bearing patriotic messages. A Montana native, he was familiar with the ways of trout and kokanee. He worked a series of jobs throughout his life ranging from water-meter reader to grocery store clerk. He enjoyed woodworking, making china hutches and other furniture.

And, more than anything, he didn't want to live in a nursing home.

But four years ago, a stroke left him partially paralyzed. Eventually, Diane couldn't care for him on her own. James was 67 and classified at high risk for falling when he was admitted to the special care unit at Casa Del Mar in April 2002. He was not an easy patient. For one thing, he weighed more than 260 pounds and couldn't get into bed by himself. He also suffered from depression and was prone to loud crying jags that lasted hours and provoked complaints from other patients.

"He was very angry at all times," nurse Barbara Hayes recalled in a deposition. "He was verbally abusive to the staff, as well as other residents. He would run into them with his wheelchair."

Brian Burt, a local attorney representing SunBridge, referred questions to a corporate spokeswoman, who said the company doesn't comment on litigation. (SunBridge no longer owns Casa Del Mar, which is now called Infinia at Scottsdale.) Albrecht also declined comment on pending litigation. The details of the case come from court records.

Brauch was living at the special care unit at Casa Del Mar for his own protection. The staff had found him in a parking lot the day he was admitted to the unit, a locked ward that specializes in caring for people who require near-constant attention. Two months earlier, Brauch had wheeled himself into an intersection, stopping traffic until staff came to retrieve him.

He wasn't much safer in the special care unit on the night of April 8, 2002.

The door to his bedroom was closed, contrary to policy that states doors in the unit are supposed to stay open. A call light that could have been used to summon help had been intentionally disabled, as was every other call light in the 32-bed unit. And Brauch had gone unchecked for hours, even though SunBridge policy states that less-vulnerable patients at moderate risk for falls are supposed to be checked at least hourly.

Michael Davis, the nursing assistant assigned to look after Brauch that night, knew virtually nothing about his patient's medical condition -- he'd never before looked after him. But Davis had heard rumors, enough to know that Brauch's wailing was the reason he didn't have a roommate. "He is always depressed," Davis recalled in his deposition. "Tells how he wants to die and all this stuff, that he wants to commit suicide."

If Davis thought that such a patient required close observation, his actions that night didn't show it.

In a written statement prepared less than an hour after Brauch was found on the floor, Davis wrote that he'd last seen his patient shortly after 5:15 p.m., when a co-worker put Brauch in his room and closed the door. Seventeen days later, Davis changed his story, telling a state Department of Health investigator that his colleague had put Brauch in his room and closed the door about 7 p.m., shortly after seeing Brauch trying to climb into another patient's bed, which prompted her to warn Davis that his charge was on the prowl.

Telephone records show that Davis spent about an hour on his cell phone during the time he was supposed to be tending to Brauch and other patients.

"I'm sorry, I should have checked on him more often," Davis told the investigator, who concluded that the staff didn't properly monitor Brauch and had left him unchecked for more than three hours.

In his deposition, Davis said Brauch could have yelled for help. Davis also insisted that the closed door wasn't a problem: "If he would have fell out of his chair and hit something or made some kind of loud noise, I would have heard it."

No one knows when Brauch fell, but he was certainly in pain when Davis finally opened the door to put him to bed. "He was just hollering, 'Oh, my leg, oh, my leg,'" Davis said. Brauch told Davis that he had fallen while trying to get into bed. When Davis asked why he hadn't asked someone to help him into bed, Brauch replied that the staff was too busy.

Once at the emergency room, Diane Brauch says her husband told her that someone -- the record doesn't say who -- told him to shut up when he cried out after falling, an assertion Judge Albrecht didn't allow into testimony.

Nurse's aides lifted Brauch into his bed and called a mobile x-ray unit, which didn't arrive for several hours. All the while, Brauch was in excruciating pain, with a hospital that could provide painkillers and prompt treatment right across the street. While waiting for x-rays, the staff at Casa Del Mar dutifully repositioned Brauch in his bed every two hours, presumably to prevent bedsores but surely agonizing to a patient suffering from a shattered femur.

Brauch wasn't taken to Scottsdale Memorial Hospital until 2:40 a.m., more than four hours after he was found lying in agony.

He died two weeks later, of complications from the fall.

Mary Hanlon, director of nursing at Casa Del Mar, wasn't particularly concerned about Brauch's fate. During her deposition, she said the fall was Brauch's fault, and it would have been Brauch's fault if he'd been hit by a car on the day he wheeled himself into an intersection.

Asked if she wanted to know details of Brauch's death, she answered, "Not really."

Michael Davis' punishment was a five-day suspension from his employer, who issued a memo two days after Brauch's fall stating that cell phone use during work hours constituted "loss of dignity if not neglect of the residents."

The state determined that the nursing home had not properly monitored Brauch, but levied no fines. After Holden complained to the state Attorney General's Office, the state cited Casa Del Mar for the inoperable call lights, which still weren't working more than a year after Brauch's death. Again, the state levied no fines.

(Although the law requires call lights, the state doesn't enforce the requirement in units for patients with dementia, says Lisa Wynn, deputy assistant director for the licensing division of the state Department of Health Services. Wynn explains that patients could become entangled in cords attached to call lights. Buzzing from call systems can agitate patients, she says, and people with dementia don't have the ability to properly use call lights.

Holden, however, points out that Brauch had lived in other units at Casa Del Mar with working call lights for nine months without misusing the call system. In any case, under state regulations, nursing homes must apply for and receive exemptions from the call-light requirement, and Casa Del Mar had not done that.)

Scott Holden was confident that a jury would punish Casa Del Mar and SunBridge. Then came Judge Albrecht's order.

In their motion for a directed verdict, SunBridge's lawyers say falls happen even without negligence, abuse or neglect, and the case against their client was fatally flawed because no expert could guarantee that Brauch's fall could have been prevented. That was good enough for Albrecht, who dismissed the case without issuing a written opinion explaining her logic.

Brauch's widow is on the hook for SunBridge's legal expenses, which Holden estimates at $10,000, but she's risking an even deeper financial hole by asking Albrecht to reverse her ruling and order a new trial.

"I'll sell my house if that's what it takes," she says.

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