Justices hear nursing home malpractice case

CHARLESTON, W.Va. -- State Supreme Court justices now will consider a medical malpractice case against a Charleston nursing home that resulted in a verdict of about $90 million awarded to one family.Attorneys appeared before the state's highest court for Wednesday's oral argument hearing. Justice Menis Ketchum recused himself and Taylor County Circuit Judge Alan Moats sat in his place.Tom Douglas filed the lawsuit against Heartland of Charleston, which is owned by Manor Care Inc, alleging severe neglect led to his 87-year-old mother Dorothy Douglas' death.In briefs submitted to the state's highest court, attorneys differ on the cause of Douglas' death.  Douglas' attorneys said she died from dehydration. The brief says Douglas could walk and communicate with family when she was admitted to Heartland and her physician thought she would live for several more years with proper care.After her stay, Douglas' attorneys argue she was "dehydrated, malnourished, bed ridden and barely responsive." The brief also says Douglas suffered head trauma from several falls, was covered in bruises and had sores in her mouth and throat.Meanwhile, nursing home attorneys argue Douglas died from dementia, which is listed as the cause of death on her death certificate. They also say she didn't die in the nursing home. Instead, she died in Hospice of Huntington 18 days after her stay at Heartland.In 2011, a Kanawha County jury awarded about $91.5 million to Douglas' family.Benjamin L. Bailey represented the nursing home and argued there were flaws in the jury verdict form and that caps under the Medical Professional Liability Act that merit a new trial or a reduction in the verdict were not applied. Bailey also argued the $80 million in punitive damages should be reduced or vacated.However, Douglas' attorney Michael J. Fuller, argued defendants didn't object to the verdict form and caps don't apply because some of the defendants are not considered health care facilities and the claims are not health care services under the act.Instead, Fuller said there was corporate negligence in not staffing the place appropriately.Much of Wednesday's oral arguments centered on whether caps applied to the verdict under the Medical Professional Liability Act.Attorneys argued whether the defendants were classified as "health care facilities" offering "health care services," as defined under the act. The lower court did reduce the verdict a bit, determining the Medical Professional Liability Act cap applied to part of the award. The cap reduced the verdict by $1 million.Bailey argued the caps apply to the whole verdict and said even though the Legislature later amended the act, it was only for clarification. He said the language under the act always has applied to nursing homes because the definition of "health care facility" includes nursing homes.
However, Justice Robin Davis mentioned the fact that 80 percent of the verdict was determined ordinary negligence with only 20 percent being medical negligence.Bailey argued if medical negligence was present at all, then it should be covered under the act. He said there are times when negligence would fall outside the scope of medical services but not in this case."If this is not, virtually every case . . . against a nursing home will evade the requirements of the MPLA," Bailey said.Fuller argued the act doesn't apply to the case because many defendants weren't health care facilities and negligence fell outside the scope of rendering health care services.In their briefs to the state Supreme Court, Douglas' attorneys argue defendants didn't provide a sufficient staff or budget and Douglas died as a result. The brief argues these claims aren't "health care decisions."
"It was a corporate decision in another state for resources. That's where corporate negligence comes in," Fuller said.
The rest of the argument hearing focused on the verdict form, which Bailey argued was "fatally flawed."In his argument about punitive damages, which totaled $80 million, Bailey said defendants shouldn't have been lumped together and instead should have been separated.Justice Allen Loughry asked if Manor Care defendants had waived that argument, as argued by Douglas' attorneys in their briefs submitted to the state Supreme Court.Bailey said attorneys didn't waive that argument because they had filed objections asking the court to separate them, which he said the court didn't want to do.In briefs, attorneys argued the punitive damage should either be reduced or vacated. However, Davis told Bailey not to argue that punitive damages weren't needed at all."Don't even say punitives aren't warranted in this case," Davis said. "What that woman went through for 19 days was horrible."Fuller maintained the judge and plaintiffs agreed on how liability would be allocated and suggested separate lines for punitive damages but said defendants didn't want four or five damages lines.Bailey also argued the form allowed duplicate damages for the same injury under allegations of nursing home and fiduciary duty violations.Of the $11 million in compensatory damages, $1.5 million was for violations of the West Virginia Nursing Home Act, $4.5 million for noneconomic damages and $5 million for a breach of fiduciary duty.Bailey argued fiduciary duty doesn't exist because the nursing home didn't take over the patient's finances.Addressing the duplicate damages argument, Fuller said "this was not a single incident case.""Douglas suffered abuse and neglect over 19 days," he said.Fuller said although West Virginia courts haven't recognized fiduciary duty in this type of situation, other courts across the country have."I can think of no more fiduciary duty than trusting someone when you can't take care of yourself," Fuller said.Bailey also argued the verdict form allowed both the beneficiaries and the estate to recover damages."In a wrongful death case, the estate is the only proper party to receive damages," Bailey said.Davis asked Fuller if state law allowed for both the beneficiaries and the estate to recover damages. Fuller responded they could because pre-death claims, or injuries, and wrongful death claims are separate.Following oral arguments, Patrick Kelly, CEO of the West Virginia Health Care Association, released a statement, saying he hopes justices will overturn the verdict."Our members are gratified by the arguments made by the defense team, led by Ben Bailey and Brian Glasser, who presented numerous flaws in the case," Kelly said. "Every aspect of care provided in our members' facilities is covered by the Medical Practice Liability Act, and the protections provided by that Act should apply in this case. We hope the justices will overturn this outrageous jury award."Contact writer Andrea Lannom at Andrea.Lannom@dailymailwv.com or 304-348-5148. Follow her at www.twitter.com/AndreaLannom.
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