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Nursing home appeal going before high court

CHARLESTON, W.Va. -- Attorneys representing a Charleston nursing home will ask state Supreme Court justices to throw out a $90 million jury verdict awarded to the family of an elderly woman who said nursing home workers indirectly caused the woman's death.

In 2011, after a trial that lasted nearly two weeks in front of Kanawha Circuit Judge Paul Zakaib, jurors found that Heartland of Charleston failed to feed and care for Dorothy Douglas, who stayed at the home for about three weeks.

Eighteen days after her release from Heartland, Douglas died at age 87. Her son, Tom Douglas, who filed the lawsuit claimed Heartland failed to feed and care for the woman and that she died of complications from dehydration.

Arguments are scheduled Wednesday in Heartland of Charleston's appeal. Attorneys for the nursing home say all of the claims made against the nursing home and its employees should be subject to the state's medical malpractice caps.

Lawmakers instituted West Virginia's Medical Professional Liability Act to prevent plaintiffs in lawsuits alleging medical malpractice from recovering more than $500,000 in noneconomic damages.

Zakaib reduced the jury's $91.5 million award to about $90.5 million, noting that a small portion of the verdict should be subject to the medical malpractice cap.

The jury in Douglas' case classified only a small portion of the home's negligence as "medical." Douglas' lawyers argued that the woman died because nursing home staff failed to give her food and water, which don't require a medical degree to dole out.

The cap law also requires juries to determine the extent of medical negligence that occurred versus ordinary negligence. They found that the nursing home was 80 percent at fault in ordinary negligence and 20 percent at fault in medical negligence. Douglas' lawyers argued throughout the trial that Dorothy's death was caused by Manor Care Inc. executives' repeated failure to keep their nursing homes properly staffed.

Brian Glasser, who represents Heartland and its parent company Manor Care, has said the cap statute broadly defines a nursing home as a health-care facility, and any negligence from workers in such a facility is defined as medical negligence.

Douglas' lawyers claim that nurse aides are not necessarily considered "health care providers" under the caps' definition.

If the justices find that the caps apply, Douglas' nearly $100 million verdict may be reduced to $500,000 in noneconomic damages, which include pain and suffering and punitive damages that make up the bulk of Douglas' award.

"The $80 million punitive damages award should be vacated or, at a minimum, substantially reduced," attorneys for the nursing home wrote in their appeal.

The jury awarded plaintiffs $1.5 million for violations of the West Virginia Nursing Home Act, $4.5 million for noneconomic damages and $5 million for breach of fiduciary duty.

Attorneys for the nursing home will also argue the verdict form the jury used during the trial was flawed and, among other things, didn't specify damages for each defendant named in the suit. Instead, the form lumped them together, denying their rights to separate determination of liability.

Another issue being raised on appeal is that jurors were allowed to consider evidence of Manor Care's wealth, which was improper, according to attorneys for the nursing home.

The verdict form also directed jurors to give a $5 million award to Douglas' sister Carolyn Douglas Hoy, who wasn't named as a party in the lawsuit.

Reach Kate White at kate.white@wvgazette.com or 304-348-1723.


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