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Justices hear appeal of $90 million nursing home verdict

Nursing home litigation in West Virginia is on hold until state Supreme Court justices decide a case involving a $90 million jury verdict awarded to the family of an elderly woman, according to an attorney for the nursing home.

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.

Supreme Court justices heard arguments in the nursing home's appeal on Wednesday. Taylor Circuit Judge Alan Moats sat in for Justice Menis Ketchum, who recused himself.

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.

West Virginia's Medical Professional Liability Act prevents plaintiffs in lawsuits alleging medical malpractice from recovering more than $500,000 in non-economic damages.

Zakaib reduced the jury's $91.5 million award to about $90.5 million, ruling 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.

"That's a decision for the court to make ... not a decision for a jury," said Ben Bailey, who represents Heartland. "Nursing home litigation, I understand, has come to a screeching halt until this case is decided."

Bailey argued that 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.

"If this is not, virtually every case ... against a nursing home will evade the requirements of the MPLA," Bailey said.

Mike Fuller, who represents Douglas, said the woman's death was the result of corporate negligence and that Zakaib had already applied the medical cap to the verdict.

The cap law 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.

Justice Margaret Workman noted that nursing homes provide plenty of other non-medical services, like social services and recreational activities.

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

The jury awarded plaintiffs $1.5 million for violations of the West Virginia Nursing Home Act, $4.5 million for non-economic damages, $5 million for breach of fiduciary duty and $80 million in punitive damages.

"Don't even say [punitive damages] are not warranted in this case," Chief Justice Robin Davis told Bailey. "What that woman went through for 19 days was horrible."

Attorneys for the nursing home say jurors were improperly allowed to consider evidence of Manor Care's wealth, and claim that led them to the $80 million in punitive damages.

Bailey also argued that 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, he said.

Justices wanted to know if trial attorneys had properly objected to the issues with the verdict form during trial. Fuller said they hadn't and never requested a separate determination of fault and damages during the trial.

Bailey said that attorneys had objected during trial and that Zakaib sided with plaintiffs when attorneys asked "where are separate damages?"

Nursing home attorneys also take issue with the verdict form directing jurors to give a $5 million award to Douglas' sister, Carolyn Douglas Hoy, who wasn't named as a party in the lawsuit.

Fuller said "survival claims" like injuries that lead to death are separate from wrongful death claims and, therefore, allows both the beneficiaries and the estate to recover damages.

"Would you agree the verdict form is just an absolute mess?" Justice Allen Loughry asked Fuller.

Fuller said it wasn't. He also denied the nursing home's claim that duplicative damages were awarded because an award was given for both the West Virginia Nursing Home Act and for breach of fiduciary duty.

"This was not a single incident case. Douglas suffered abuse and neglect over 19 days," he said.

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


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