Jury hears closing arguments in nursing home trial

By Jon Campisi | Aug 10, 2011

Attorneys representing a woman suing a handful of medical care facilities on behalf of her late father, who perished months after a chain of physical ailments, made their final plea Tuesday to the 12-member jury in the case, urging the men and women, during closing arguments, to find the defendants liable for the patriarch’s death.

“I told you that you would see that the healthcare system failed Mr. Mackey,” plaintiff’s attorney Pete Giglione, of the firm Wilkes & McHugh, said to the jury, referring to the late Marcel Mackey Sr. “The evidence was absolutely overwhelming.”

Philadelphia resident Camay Williams filed the civil suit two years ago on behalf of her father, who died in May 2008 after a series of health problems.

In particular, the plaintiffs contend that a large pressure ulcer Mackey developed while under medical care was a major contributing factor in his death, and something they claim was the direct result of negligent and even reckless conduct on the part of the defendants.

The defendants in the case are Philadelphia-based nursing home Willow Terrace, Albert Einstein Medical Center and Albert Einstein Healthcare Network, Thomas Jefferson University Hospitals, St. Agnes Continuing Care Center, St. Agnes Long Term Care, LLP, Methodist Hospital, and Mercy Health System.

Closing arguments came on day 25 of the jury trial before Philadelphia Common Pleas Court Judge Ricardo Jackson.

In his opening argument, Giglione spoke about a family struck by multiple tragedies. The saga began in 2007, when Mackey was taken to the hospital after suffering a stroke. From there, things seemed to go downhill, with Mackey’s wife, Joyce, eventually requiring hospitalization as well.

Things were made worse by the fact that those in charge of Mackey’s care were apparently neglecting their patient, Giglione claims.

“Mr. Mackey became a number. He became a body in a bed to them,” he told the jury. “The silent sufferers like Mr. Mackey get ignored.”

Mackey was unable to speak after his stroke, according to testimony in the case.

Giglione said a systematic failure on the part of those entrusted to his care is what caused Mackey’s eventual demise.

But Giglione stopped short of blaming those in direct, regular contact with Mackey, instead footing blame with the higher-ups and decision-makers at the medical care facilities.

“It’s unlikely that the hands-on caregivers were bad people,” Giglione said. “In many ways, ladies and gentlemen, the caregivers were victims as well.”

Giglione claims things like staffing shortages led to lack of patient care to Mackey and others.

Defense attorneys, however, strongly deny that their clients were responsible for Mackey’s death, with blame instead placed on a number of factors out of their control.

Michael Sabo, who represents Albert Einstein and Willow Terrace, maintains that Mackey’s other health ailments, such as his diabetes and stroke, led to his development of the pressure ulcers, since it meant his body’s ability to heal was compromised.

Furthermore, Sabo said he doesn’t believe that any alleged negligence or recklessness took place on the part of his clients. He even took issue with Giglione’s comments that the individual nurses and staff at Willow Terrace and Albert Einstein were most likely victims as well.

“An institution is nothing without its caregivers,” Sabo told the jury. “That’s why counsel is trying to divert your attention from these people to a corporate entity.”

As for staffing levels, Sabo stated that contrary to claims from the plaintiffs, evidence shows that at no point in time during Mackey’s stay at Willow Terrace was the facility understaffed.

Sabo went on to say that he was surprised at the fact that, if things were as bad as they are being painted by the plaintiffs, Mackey’s family took no steps toward transferring him out of the defendant’s facilities.

“Why aren’t you complaining,” at that point in time, he said.

During closing arguments, attorneys for both the plaintiffs and defendants accused one another of hiring expensive expert witnesses who may have had no direct contact with Mackey while he was alive, but who had no problem playing “Monday morning quarterback,” in the words of Giglione.

Sabo, meanwhile, said defense witnesses showed that Mackey’s pressure ulcer worsened because his body was unable to fend off the infection.

“We have acknowledged that Mr. Mackey, unfortunately, suffered from many illnesses,” Sabo said. “These are facts, these are not excuses.”

Sabo said if the reason for his pressure ulcer on his backside had to do with a failure on the part of staff to properly turn and reposition Mackey while in bed, then it’s likely he would have developed pressure ulcers on other parts of his body, like the backs of his arms. But that wasn’t the case.

“There was no recklessness conduct, there was no outrageous conduct,” Sabo emphasized to the jury. “There was good care and treatment.”

The other two defense attorneys in the case, Michael Doyle and William Pugh, similarly stressed that they believe the evidence shows their clients are innocent of any civil claims against them.

Doyle, who represents Methodist Hospital, said the fact that there is no wrongful death claim against his clients shows Methodist is innocent of any accusations. He said Methodist got swept up in the litigation because it was one of the many places Mackey stayed at during the course of his months-long health problems.

But Doyle said each party needs to be judged on its own merit.

The case isn’t about “corporate America,” it’s not about the healthcare system, Doyle said. It’s about a select few defendants who are “entitled to be judged on their own” merit.

“They’re not claiming that we killed Mr. Mackey,” Doyle said. “I’m just asking to be treated fairly … for the role we played.”

Pugh, who represents St. Agnes, also pointed out to the jury that no wrongful death claim was filed against his client.

“Every day, Mr. Mackey was assessed from head to toe,” while at St. Agnes, Pugh said. “The medical records show that he was seen by a doctor … by wound care … every day. Plaintiff’s don’t like these records because they’re not blank.”

After closing arguments, and after receiving Judge Jackson’s instructions, the 12-member jury went into deliberation.

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