Rosewood Care re-trial to resume

Steve Gonzalez Sep. 4, 2008, 6:32am

Rosewood Care Center of Edwardsville


A medical malpractice case against Rosewood Care Center that resulted in a mistrial last June is slated to begin again at 9 a.m. on Sept. 8.

Last June, plaintiff's attorney Robert Gregory told Madison County jurors he would prove that Rosewood Care Center was negligent in caring for a patient who suffered a fractured hip six hours into his respite visit in January 2003.

A negligence suit brought by Paul Graves, the subject's son, claims the Edwardsville nursing home violated policies and procedures of care established by the state Nursing Home Care Act.

Alfred Graves died in September 2004 at a different nursing home, more than a year-and-a-half after his fall at Rosewood.

Graves, who suffered from early stage dementia, was admitted Jan. 17, 2003, for a short-term visit so that his son and daughter-in-law with whom he lived could take a trip to Mexico, Gregory said. He also said he was still in his street clothes because he wasn't happy about being at the nursing home.

Gregory said it was Graves' roommate who notified staff about the accident.

As Gregory developed his case during opening arguments, a male juror's loud snoring became disruptive.

"Obviously, you're having a problem staying awake," Hylla said. The juror responded that he was sick. Hylla thanked him for his service and excused him.

"That's why we have alternates," he said.

But, that is not why Hylla called a mistrial.

Hylla declared a mistrial after one of the defendants in his case was seen talking to a potential juror during Madison County Associate Judge Keith Jensen's swearing-in ceremony later that day.

The defendant was talking to his wife who was called for jury duty in a potential asbestos case that eventually settled.

When Hylla learned of the contact, he said he was going to call a mistrial and set the case for a later date.

Prior to calling the mistrial, a juror informed Hylla that the plaintiff in the case approached her to tell her that he knew her father. The juror informed Hylla of the contact and Hylla admonished the jurors and the parties that they were not allowed to talk to each other.

Ironically, the day after Hylla called a mistrial, which is rare, Circuit Judge Barbara Crowder also called a mistrial in a med-mal case in her courtroom.

Crowder was forced to call a mistrial after jurors who had deliberated nearly 15 hours could not reach a verdict one way or another.

Gregory also told the jurors that he would show that a nursing care assessment wasn't completed when Alfred Graves was first admitted to Rosewood and that nursing charts weren't completed accurately.

But Rosewood attorney Kevin Hoerner said the nursing home did not fail to complete any assessment as required before "the poor gentleman fell."

"The earliest required is at 24 hours," he said. "We were in compliance."

He also said that Rosewood Care Center relied upon the assessment made by Graves' primary physician who was contacted "first thing" upon admission. Graves' physician did not put any restrictions on his activity level, Hoerner said.

He said his ability to ambulate was the same the day before he arrived at the nursing home.

"Alfred Graves was his own man," Hoerner said during his opening argument last June. "He was not a demented, clumsy, 81-year-old man."

Hoerner said Graves could dress and bathe himself and move about home without problems.

"He had no rails on the bed, he didn't need it," he said. "There was no bell to ring, no call light. He took care of himself. There were no special accommodations made to the home.

Hoerner said Rosewood Care Center is a "state-of-the-art" nursing home, "as nice as anything."

"We're proud of the facility and proud of the care we provide," Hoerner said.

"We're here because sometimes unfortunate and bad things happen to good people and there is no one to blame for that."

The trial is expected to last around 10 days once a new jury is picked.

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