Blair judge’s ruling overturned

The Pennsylvania Com­mon­wealth Court has overturned a decision by a Blair County judge who ruled that the Hollidaysburg Veterans Home and its employees were immune from lawsuit by the family of a resident who died after being pushed to the floor by another resident.

The lawsuit was brought by the estate of Robert Eugene Beaverson, who on Aug. 29, 2015, was pushed by another resident.

The individual who did the pushing was referred to in the lawsuit only as Resident 4757.

The lawsuit pointed out that a certified nursing assistant was present when the incident occurred but did not intervene

The nursing assistant did report the incident to a registered nurse, who determined that the man who eventually died had suffered a cut on the back of his head.

He was said to be “alert and talkative” but stated his head “hurt a little.”

The resident was transported to UPMC Altoona where it was determined he had suffered a brain bleed that was initially resolved.

The resident, however, died on Sept. 24, 2015.

The Veterans Home and the Pennsylvania Depart­ment of Military and Veterans Affairs requested that the survival and wrongful death actions against the entities be dismissed because they are protected from civil actions by sovereign immunity.

There is a medical-professional liability exception to the sovereignty but, an opinion by Blair County Judge Daniel J. Milliron dismissed the survival and wrongful death actions.

He ruled the Pennsylvania medical entities were protected by immunity and that the protection was not abated by the “medical-professional liability exception” because the incident resulted from an action by another resident, not an employee.

A three-judge panel of the Commonwealth Court ruled in March that Milliron was correct when he dismissed the lawsuit against the medical facilities.

But it overturned his ruling that the nursing assistant and other center staff were protected by immunity.

In an opinion written by Judge P. Kevin Brobson, it stated, “Assuming the allegations set forth in the Beaverson Estate’s complaint are true, the (nursing assistant) and other Center staff had a duty to intervene, redirect and/or de-escalate any altercations involving decedent, Resident 4757, or any other Center residents … from suffering physical harm.”

“If the Beaverson Estate proves that the (nursing assistant) had this duty and breached it, the Beaverson estate must be given the opportunity to establish that the ‘acts of a health care employee’ were a contributing factor to the decedent’s injuries,” it continued.

The state entities should not be able to use sovereign immunity to avoid liability for their actions simply because Resident 4757 and not a center employee pushed the decedent causing him to fall and hit his head, the opinion stated.

Another question is whether the nursing assistant’s “actions or inactions fell within the medical-professional liability exception,” according to the opinion.

At this point in the lawsuit not enough facts are known, the opinion stated, to determine whether the nursing assistant would even be considered a health care employee who fell under the exception.

The opinion by the panel that also included Judges Renee Cohn Jubelirer and Robert Simpson, instructed the judge to determine which allegations relate to the health care entities and which relate to health care employees.

Milliron has ordered that a status conference be held to discuss the Commonwealth Court opinion.

The estate is represented by attorneys Robert F. Daley and Katelyn D. Edwards of Pittsburgh.

The Veterans Home and Department of Military Affairs are represented by attorneys Henry Salvi of the Pennsylvania Attorney General’s Office and attorney Anthony Kovalchick of Pittsburgh.

The case was argued before the Commonwealth Court on Feb. 11.

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