Nursing home found negligent in resident's choking death after videotapes destroyed - Albuquerque Journal

Nursing home found negligent in resident’s choking death after videotapes destroyed

Peter Robinson

Copyright © 2022 Albuquerque Journal

Peter Robinson was in the late stages of dementia and restricted to a pureed diet when he choked to death on a hot dog after wandering unsupervised into the dining hall of his Albuquerque nursing home in 2019.

The Uptown Rehabilitation Center contended his death was an accident and couldn’t have been prevented. But the nursing home didn’t retain its in-house surveillance video that could have revealed the circumstances leading up to his death, according to filings in a wrongful death lawsuit filed by Robinson’s estate.

The center contended there was no intentional destruction of evidence, just a routine practice of taping over such video every 30 days.

But in October, a state district judge, in an unusual action, imposed the “severest sanction” for “spoliation of evidence” and found the center negligent.

Judge Joshua A. Allison, of Albuquerque, then sent the case to a jury for a trial solely on damages. A jury awarded more than $758,000 on Oct. 19.

“At a minimum, the Center was reckless in failing to retain the videos and it is not a far leap for this Court to conclude that the Center purposely allowed the videos to be erased because of their potential evidentiary value in providing the Center’s liability,” wrote Allison in a ruling.

Attorneys for Uptown Rehabilitation didn’t respond to repeated Journal requests for comment.

The wrongful death lawsuit, filed by Albuquerque attorneys Rachel Higgins and Maria Touchet, contended the nursing home had been inadequately staffed and was negligent. The lawsuit was filed by Kevin Robinson-Avila, Robinson’s brother and representative of his estate. Robinson-Avila is a business reporter for the Albuquerque Journal.

Court records in the case show the center, one of 10 in Albuquerque affiliated with the national nursing home operator Genesis Healthcare, was also fined $22,555 by the U.S. Department of Health & Human Services, which investigated the death in late 2019.

Investigators concluded the center failed to provide adequate supervision of Robinson when staff had been aware of his compulsive behavior of trying to grab leftovers from residents’ dinner plates.

Robinson, 62, had been on a pureed diet because he could no longer chew and swallow properly. But he still craved solid food and, because of his dementia, “was unable to care for himself or avoid actions which could inflict self harm,” the lawsuit stated.

The day of his death, hot dogs on buns were on the menu.

A nursing progress note entered into evidence stated that at 1:30 p.m. he was seen choking as he walked from the kitchen “very frantic.” Inside his mouth was part of a dinner roll and hot dog.

Staff administered CPR, but Robinson became unresponsive and died.

The federal investigative report quotes a center nursing executive, who wasn’t identified, as stating that in the past “their interventions were to just monitor him, keep an eye on him. She stated that looking back on this situation now if they had been closing the dining room doors before now, that might have prevented his death.” Robinson didn’t typically open up doors that were closed in the facility, she stated.

Lawyers for the nursing home argued the circumstances that led to Robinson’s choking happened so quickly nothing could have been done.

The judge found the entire case, as it pertained to liability, hinged on whether Robinson’s death was preventable.

So the destruction of the videos prejudiced the plaintiff case “in material and significant ways,” Allison wrote.

The destroyed video footage of the dining room could have shown who else was present at the time, whether the doors were opened or closed, whether food trays had been cleared, “and potentially much more,” the judge stated.

The video also was important because there was conflicting testimony from at least one of the center’s managers, he added.

Close monitoring

Peter Robinson, who grew up in Manhattan, New York, and graduated from New York University School of Law, worked as an attorney in San Francisco, then decided to teach math and special education in New Mexico. He had two sons.

Robinson had lived at the 134-bed Uptown nursing home, in between trips to emergency rooms, since January 2018.

Initially he had short-term memory loss and behavior issues. Two months later he was diagnosed with dementia and his memory and cognitive function were in decline.

Later that year he was diagnosed with dysphagia, and was unable to follow verbal cues to chew and swallow. He was eventually unable to feed himself and consistently needed to be told to sit down and eat. He required close monitoring and supervision at all times, the lawsuit stated.

Elizabeth Perez, who worked at the center for nearly 20 years, remembered seeing Robinson just before his death, she said in an affidavit filed in the case in May. He was one of her patients.

“I remember that hot dogs were served on that day, and I knew Peter liked those.”

She recalled residents had left the dining room that day, and lunch was over. Robinson had already had his pureed meal and was returned to his room.

But Perez recalled seeing Robinson “coming back down the hall toward the nurses station and I thought he might try to get into the dining room because he had done that many times before. I told staff present around the nursing station to keep an eye on Peter because he would likely try to get into the dining room.”

About a month earlier, she recalled seeing Robinson returning to the dining room after lunch. He had gotten a hold of a whole piece of bread.

She told a supervisor, who told her it was OK to let him have it, and that he would be fine.

“I believe that Peter got back in the dining room because either the dining room doors were left open, or they were opened by an employee who was either clocking in or out.”

She recalled seeing him that day coming from the dining room, choking.

“I was able to get a wad out of his mouth. But Peter was still choking, and changing color,” her affidavit stated.

She saw his face go from red to white to blue, and “I believe that I saw him go.”

“It was so ugly, and I felt so helpless,” she stated. “I sat in my car for a long time after my shift ended and cried.”

‘Credibility shot’

Perez in her affidavit also stated she believed that Robinson and other residents on pureed diets were not adequately supervised and if the facility had better supervision “this would not have happened.” She documented the event, the affidavit stated, and had documented “a number of issues” over the nearly 20 years she worked there.

Less than a year before Robinson’s death, federal regulators in January 2019 found the nursing home “failed to ensure that the facility had sufficient number of staff to ensure the residents were properly cared for.” One certified nursing assistant interviewed said, “dinner is a time when they need more help.”

Since Robinson’s death, court records show that Uptown Rehabilitation no longer serves hot dogs, has required its staff to ensure dining room doors are closed, and to make sure cognitively impaired residents on special diets have left the dining room to ensure they don’t return before tables are bussed.

The bussing policy had been to wait until no more than 5% of the residents were still in the room, but “administrator and dietary mangers agreed to start bussing sooner,” stated a report by then-administrator Joseph Foxhood, who has since left Uptown Rehabilitation.

Foxwood revealed the videos had been reviewed by staff after the death.

He explained there was no lawsuit filed at the time and no one thought to save the videos in case of future litigation.

Allison in his ruling concluded that the nursing home relied on the existence of the video to explain the circumstances of events to nursing home regulators, and relied on the videos for its defense that Robinson was in the dining room very briefly, but then wanted to downplay their importance.

“In short, Defendant’s credibility on the issue of the lost videos is shot,” he added.

Robinson’s attorneys sought the spoliation sanction, stating in a motion that the nursing home should be held accountable for failing to preserve such evidence.

“What incentive will Defendants, or other potential defendants, have if there is no accountability for intentionally dumping evidence following injuries and death on its premises?”

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