Nursing Home Accused of Wrongful Death

The Trinidad State Nursing Home (TSNH) was served recently with a wrongful-death complaint alleging wrongdoing that resulted in the September 2007 death of resident Josephine Sciacca.The complaint was filed by R.E. Chips Portales of Denver legal firm Portales and Associates, on behalf of Sciacca's surviving spouse, Frank Sciacca, and her children, Jerry and Michael Sciacca, against TSNH Executive Director Lee Burkholder, Director of Nursing Margaret Hamlin, Nursing Supervisor John Martinez and social workers Mark Shaul and Amy Montoya.

"Normally, on nursing home abuse cases, you don't generally name individuals, you just name the entity," Portales said during a Monday interview. "But, because (TSNH) is a state-run facility - and if you remember, according to the old common law that 'the king can do no wrong' - they have governmental immunity. (TSNH) is not considered to be a hospital, based upon a (2005) case called, Montoya v. Trinidad State Nursing Home, in which they determined it's not a hospital."

A call made to Burkholder for comments on the complaint was not returned by press time. The Colorado Department of Human Services (DHS) was also contacted for comment on the complaint, and also declined to comment. "No, obviously we are in active litigation, so we couldn't comment directly on the allegations, DHS spokesperson Liz McDonough said. "What I can say is that we take the care and treatment of our residents very seriously, and we provide a high level of care and we'll respond appropriately (to the complaint)."

The complaint alleges that during Sciacca's stay at TSNH from June 8, 2006, to September 20, 2007, the aforementioned parties played a part in allegedly providing, among other things, "...inadequate, negligent, knowingly and/or intentionally deficient nursing care and administrative services...failure to prevent the pressure ulcer on Josephine Sciacca's right buttock from reopening...failure to encourage food and fluid intake to promote healing of her pressure ulcers and maintain her hydration level...failure to comply with physician's written orders concerning administration of oxygen and pulse saturation levels...failure to maintain and accurately document medical records that were free of tampering and fraudulent documentation...failure to provide Josephine with adequate supervision to prevent accidents...failure to document reasons for securing the November 20, 2006 physician telephone order for Niravan, a Controlled Substance Schedule IV Benzodiazepine, 30 minutes before her tub bath...failure to document that defendants made any efforts to resolve the conflicts between the facility and plaintiff (Jerry) Sciacca and Josephine Sciacca...failure to provide essential care to keep Josephine Sciacca alive and at her highest level of practicable functioning and status."

Josephine Sciacca was admitted to Parkview Hospital in Pueblo after leaving TSNH. She died there Oct. 24, with the death certificate identifying pneumonia as the immediate cause of death. Dysphagia, a difficulty in swallowing, and general weakness were identified as other significant contributors.

The notice of intent to file, required within 180 days of the incident, was filed by Jerry Sciacca on April 16, 2008. "He gave the state notice that he was going to sue them," Portales said. "And now we've finally gotten it done...what'll happen now is that the government will file and answer."

Portles said that he anticipated the state government filing a motion to dismiss. "When you're suing a nursing home, you generally just sue the entity on a basis of basically a malpractice case that they had a license to do something and they didn't undertake the job and as a result someone got hurt or died," he said. "In this situation you can't sue the state because they have immunity, so you have to sue each individual under a 1983 action for acting under the Colorado state law.

For an example, Portales pointed out a single alleged incident listed in the complaint, said to concern an attempt by Jerry Sciacca, who possessed power of attorney for Josephine Sciacca, to take her to a medical evaluation to a geriatric physician in Denver, due to alleged concerns of his mother being over-medicated at TSNH. "After defendants learned what Plaintiff Gerald N. Sciacca's plans for his mother were the nurses and the social worker failed to help prepare Josephine Sciacca both physically and psychologically for the transfer to Denver and thus allay much of Josephine Sciacca's anxiety and nervousness," the complaint states. "Instead of allaying her anxiety and nervousness the nurses and social worker Amy Montoya, BSW allowed the incident to escalate to a point that the police were called to wrongfully escort plaintiff Gerald N. Sciacca from the facility."

Summarizing aspects of the complaint concerning the alleged incident, Portales said, "Some of the nursing staff convinced Mrs. Sciacca that if she went with him she would die, that she wasn't strong enough to make the trip. In fact, they even say to her in front of Jerry (Sciacca), 'you better not go, you might die on the way to Denver,' over and over again...and when Jerry (Sciacca) got there and was trying to talk to her about it, the nursing home interfered, and they actually had (Shaul) get in front of Jerry (Sciacca) and prevent him from moving around. He kind of pinned him up against the wall and kept him from taking his mom."

The complaint alleges that police escorting Sciacca from the nursing home then told him that the nursing home had a restraining order against him. "Sciacca will testify that even though he was told the story about the restraining order, he had never been served with any restraining or protective order," the complaint states. "Sciacca will testify that after he made a telephone call to the supervisor responsible for the overall supervision of the state run nursing homes, all talk about the restraining order disappeared...The nursing home lied about having a restraining order in order to keep (Sciacca) away from his mother."

The $150,000 maximum in damages allowed by Colorado law are being sought in the case, but Portales asserted, "I think this case is worth more than the maximum."

A response to the complaint has yet to be filed by the state.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
Get Professional Help

Talk to an Estate Planning attorney.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you