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Exceptional Case: Michael Fruhling of Gersowitz Libo & Korek

How He Fought to Alter Policy

“The medical malpractice, in our minds, was clear-cut, and we could make a difference to the family, and hopefully to the patients at that facility.”
– Michael Fruhling  

One afternoon about 10 years ago, a man with HIV/AIDS-related dementia was transported by ambulette from a Manhattan hospital where he’d received a regular dialysis treatment and delivered to the front desk of the long-term care facility where he lived. He soon disappeared and was never again seen alive by anyone who knew him. A week later, he was found dead on a park bench in New York City.

For some attorneys, the idea of trying the wrongful death case of a man with not much time left to live—one who’d contracted HIV through intravenous drug use—wouldn’t seem to make much sense. A jury would be unlikely to attach much financial value to such a life, they might reason. But for Manhattan’s Gersowitz Libo & Korek, the case wasn’t about landing a significant monetary settlement so much as making sure this kind of tragedy never happened again.

“Because of the limitations in New York wrongful death law, and constraints applied by past Appellate Division decisions on pain and suffering, the case, from a damages standpoint was limited,” says Michael A. Fruhling, who assisted lead trial attorney Jeff Korek with investigation and preparation of the case. “However, it is important as an attorney handling medical malpractice and personal injury cases to look past the dollar value of the cases, and bring some sense of justice to the families that have been aggrieved by medical errors. In this particular case, the medical malpractice, in our minds, was clear-cut, and we could make a difference to the family, and hopefully to the patients at that facility.”

An autopsy determined that the man, 44, a U.S. Army veteran, died from exposure and complications related to his disease, including failure to receive regular dialysis treatment. While he was unlikely to have survived his disease, the immediate cause of his death was preventable, his attorneys believe. “He didn’t have to die on a park bench,” says Fruhling.

The man’s family, who lived in California, hired a firm there to investigate how he’d managed to wander from the care facility and who was responsible. The California firm, in turn, referred the case to Gersowitz Libo & Korek, which has numerous multi-million-dollar verdicts and settlements to its name in medical malpractice, auto accident, trip-and-fall, and wrongful death cases.

The man, they learned, had been living in the care facility for about a month because his cognitive abilities were very much impaired by his disease. He was also in renal failure and needed dialysis three times a week at a New York hospital. He was transported there each time by ambulette, a system of transportation similar to an ambulance but whose drivers are not trained as emergency care personnel. On the day he went missing, he had received his treatment and was driven back to the care facility and deposited at the front desk. No one knows what happened to him in between that time and when he was found dead.

“The allegation that we had was very simple,” says Fruhling. “This was a person known to have dementia and known to wander; in fact, he wore a wander guard when he was in the facility. You can’t leave people on their own. You have to ensure the safety of your patients going to and from places.”

The firm filed suit in the Bronx Supreme Court against the long-term care facility. Before trial began, in 2002, the facility made a critically important stipulation: It agreed to change its procedures and always send a nurses’ aide on trips with patients with dementia or who otherwise are unable to care for themselves—to make sure they arrive where they are supposed to. Ambulette drivers, whose sole function is to transport patients to and from places, aren’t required to have medical training like ambulance drivers, and so are untrained in recognizing whether a patient is suffering from dementia and therefore a possible danger to himself. By sending a nurses’ aide with such a patient, the facility would ensure that such patient is protected from wandering off and becoming lost.

The trial was three weeks long, with the plaintiffs calling a series of witnesses including the medical director of the defendant facility, the ambulette driver, the decedent’s brother and also his live-in girlfriend, the witness who found the decedent in the park, an expert forensic pathologist, an expert in nursing home care, and a witness from the New York State Department of Health. Right after closing arguments but before the case went to the jury, the two sides settled. The amount of the settlement was confidential, but the most important victory had already been attained—the defendant had changed its transportation policy in order to protect the lives of other patients.

As so many people in long-term care suffer from dementia and other cognitive diseases, the case has wide implications for many people. “The importance of this case is that it ensures that people who have disabilities such as my client had will be transported safely to and from their facility,” says Fruhling.

“This case in particular was very rewarding, as we were not only able to make a difference for our client’s family, but for other patients at the long-term care facility,” says Fruhling. “As part of the settlement, the facility agreed to change its internal policies.”