Jury awards $10,000 in personal injury suit against Rosewood Care Center

Amelia Flood Jun. 24, 2011, 11:21am


A St. Clair County jury has awarded the heirs of a woman who claims to have broken her left femur after falling at a Swansea nursing home $10,000 after a contentious trial.

Jurors awarded Jeremy Rosenstengel, the special administrator of the estate of Delia Marguerite Giannini, $10,000 after less than three hours of deliberations Friday.

Giannini, now deceased, sued Rosewood Care Center of Swansea in 2006 claiming the nursing home negligently failed to take measures to prevent a fall that led to the break above her left knee a year earlier.

Rosewood contended throughout the four days of testimony in the case that the fracture occurred before Giannini fell and that it properly cared for her.

Plaintiff's attorney Samantha Unsell said following Friday's verdict that a post-trial motion seeking a new trial on the damages issue will be forthcoming.

"I am grateful for the jury's verdict," Unsell said in a phone interview with the Madison County Record following the trial. "I'm glad that they held Rosewood accountable. I think we're entitled to a new trial on the issue of damages. We proved $54,000 in medical bills and the law states we must be compensated for that."

Unsell, in her first closing argument before a trial jury, had asked for damages in the amount of $250,000.

The trial began Monday with jury selection.

Testimony in the plaintiff's case began Tuesday with the defense beginning its case Thursday morning.

Unsell sparred with defense expert Dr. Gregory Compton while defense attorney Dennis McCubbin objected throughout the trial to what he considered questions that fell outside the scope of evidence.

Friday morning's closing arguments were delayed by a dispute over whether or not white-coated Rosewood nurses could be in the audience.

Unsell told St. Clair County Associate Judge Andrew Gleeson that presence of six Rosewood employees in white scrubs was prejudicial.

"This is clearly meant to be an attempt to either inflame or intimidate the jury," the plaintiff's counsel said.

McCubbin countered that it was a public courtroom and the employees were entitled to stay.

He also took a shot at the testimony of two of Giannini's grandsons, including Rosenstengel. That testimony included testimony about an autistic child.

"If anybody is guilty of trying to foster a sympathetic atmosphere in this courtroom, it's the plaintiff."

Gleeson noted his own surprise to see the nurses in the courtroom when all but two were not connected with the case.

Gleeson allowed the Rosewood employees to stay provided they removed their white medical jackets.

McCubbin objected.

"And I think it's an abuse of discretion," the defense attorney added.

In her closing argument, Unsell stressed that the fall prevention precautions her client believed were needed were not, as Rosewood claimed, an attack on Giannini's dignity.

"We're not saying they should have tied her to her chair or tied her to her bed or that she should have had someone sitting there and staring at her 24 hours a day, seven days a week," Unsell said.

She reminded jurors that Rosewood had failed to follow its own policies including not checking on Giannini every 15 minutes as dictated by an anti-wandering policy put in place for the plaintiff.

"The evidence will show that they didn't do what they were supposed to do," Unsell said.

Unsell called Compton's testimony about Giannini's medical conditions "irrelevant."

She noted that none of Giannini's treating doctors testified that the fracture happened before the fall.

Compton, a physician from South Carolina, testified he believed the break spontaneously happened before the fall.

The plaintiff's attorney went on to ask for damages of $254,000. In addition to the $54,000 in medical bills, Unsell sought $100,000 for the loss of a normal life experienced and $100,000 in damages for pain and suffering.

McCubbin, in his closing, emphasized Rosewood's committed staff, at times referencing the employees in the courtroom.

He told jurors that the only way to have prevented Giannini's fall would have been to have someone near enough to her to catch her or prevent her from standing up from her wheel chair.

McCubbin asked jurors to consider "reality" in the situation.

The defense attorney accused Unsell of "overgeneralization," and putting weight on only small portion of the whole case.

McCubbin also went after Unsell as "a trial lawyer," and questioned her motives.

"It's about the money," McCubbin said. "No matter how much we charted, it's not enough for the trial lawyers. It's not enough because they want money."

McCubbin told jurors that the leg fracture occurring prior to the fall was the only reasonable explanation of the incident.

He asked jurors to consider whether they would rather Rosewood's staff was charting and documenting Giannini's care or actually taking care of her.

Following McCubbin's closing, Unsell stood again for the end of her argument.

"I have to ask one question," Unsell began. "If everyone from Rosewood is here, who's taking care of anyone?"

"Objection, Your Honor," McCubbin retorted. "That's absurd."

McCubbin's objection was overruled by Gleeson.

Unsell countered McCubbin's question about documentation versus care.

"I think Rosewood should have enough staff to document and take care of patients."

She went on to emphasize that the fall was "the most logical explanation" for her client's injury.

Jurors began deliberations at about 11:45 a.m. The verdict was returned at 2:45 p.m.

McCubbin declined to comment on the verdict immediately after the verdict's reading.

The case is St. Clair case number 06-L-456.

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