Nursing Home Cases: Judgments, Avoidance, Collection

Bennett v. Beverly Enters., 2006 U.S. Dist. LEXIS 75561 (D. Miss. 2006). Plaintiff filed suit alleging that Defendants participated in an unlawful scheme to fraudulently convey Beverly’s assets through a merger transaction to avoid paying civil judgments. Defendants moved to dismiss. The court found that Mississippi’s long arm statute did not reach the Defendants and granted the motion.

Roberts v. Magnolia Healthcare, Inc., 2006 U.S. Dist. LEXIS 43081 (D. Miss. 2006). Plaintiff filed suit, settled for $87,487.85 , and then secured a final judgment in State Court. Later, when plaintiff sought to garnish the insurance policy, the insurer removed the action to federal court. Plaintiff sought to remand the case to State court, citing 28 U.S.C. § 1332(c)(1), which provides that in a direct action against an insurer not joined as a party defendant, the insurer is deemed a citizen of the State of the insured; this would negate diversity. The court held that a garnishment is not a direct action as contemplated in section 1332 and that 1332 applies when the injured party is entitled to sue the insurer without having first obtained a judgment against the insured. Plaintiff’s motion to remand was denied. Same result in Estate of Davis v. Magnolia Healthcare, Inc., 2006 U.S. Dist. LEXIS 43129 (D. Miss. 2006).

Health Facilities Mgmt. Corp. v. Hughes, 2006 Ark. LEXIS 122 (Ark. 2006). A management company and a nursing facility appeals from a judgment entered against them in favor of the resident’s estate and her beneficiaries. Following a one week trial, the jury assessed damages of $38,000, a violation of the resident rights statute with damages of $1.25 million against the management company and $700,000 against the facility. An order was entered providing that 10% interest would accrue. Motions for judgment notwithstanding the verdict or for new trial or remitititur were denied. Defendants appealed. On appeal the management company argued that only a licensed nursing home can be sued for a violation for the resident right statute and that it was not licensed as such. Plaintiff argued that the management agree gave the defendant responsibility for daily operations. Construing the act, the court found that the cause of action was against a licensee and, since the management company did not hold a license, it was not subject to action under the act. The facility argued that the resident rights verdict against it must be reversed because it was inconsistent with the jury’s verdict on negligence claims. The court found that the negligence claims and the resident rights claims were separate and the jury’s verdict would be sustained if it was supported by substantial evidence, which it was. The court found that the trial court did not abuse its discretion is refusing to grant a mistrial after the owner’s salary was mentioned despite a motion in limine having been granted; the admonition by the circuit court to the jury to disregard the question regarding the salaries of the Bedells was clear, precise, and strong. The facility argued that remititur was appropriate because a punitive claim of $700,000 was excessive where the underlying damages were $38,000. The court reviewed the evidence of abuse presented at trial ad found that the verdict did not shock the conscious of the court and did not violate the standard in Advocat, Inc. v. Sauer, 353 Ark. 29 (Ark. 2003).

Estate of Jones v. Mariner Health Care of Deland, Inc., 2007 Fla. App. LEXIS 3857 (Fla. Ct. App. 2007). Court of Appeals affirmed in part and reversed in part after trial court denied motion for new trial. Estate, substituted for resident after her death, contended that final judgment for Defendants was erroneous and a new trial was warranted because the trial court improperly limited claims under the Nursing Home Residents’ Act. The case was brought after resident was taken to hospital, after suffering a second brown emesis; after noting contractures in resident’s hips and knees, a colostomy was performed and it was discovered that resident had a perforated rectum and a massive fecal impaction “the size of a football.” She was later released to a different nursing home where she lived another year and a half until her death. Plaintiff sued for failing to provide adequate care resulting in contractures and the impaction. Shortly before trial, “the Florida Supreme Court issued its opinion in Knowles v. BeverlyEnterprises-Florida, Inc., 898 So. 2d 1 (Fla. 2004), which held that a personal representative could not bring a claim under the 1997 version of section 400.023(1).” Mariner then moved to strike all claims under the Act. The trial court ruled that Knowles applied and limited all allegations that occurred after May 15, 2001 (the Legislature amended section 400.023(1) effective that date to remove death as a causal factor when a personal representative brings a claim under the Act. The case proceeded to trial and the jury returned a defense verdict for two defendants and a verdict for two other defendants finding them not liable. On appeal the court found that the limitations in the Act described in Knowles did not apply because the action was originally brought by the resident herself prior to her death. The court rejected Mariner’s argument that a prohibition on bringing the action also precluded maintaining an action. The court rejected Mariner’s assertion that limiting the Estate’s claims was harmless error. The case was remanded for new trial on claims brought under the Act.

Guilbeau v. Bayou Chateau Nursing Home, Inc., 930 So. 2d 1167 (La. Ct. App. 2006). Defendants appealed judgment against nursing home and the patient’s compensation fund because judgment was improperly modified, because it did not limit medical malpractice liability of a qualified health care provider to $100,000 and because it did not provide that fund was not liable for violations of nursing home resident rights bill. Court of appeals found that original judgment was in error because medical malpractice damages were not limited to $100,000. The judgment below was also error by not holding that the fund has no liability for attorney’s fees for violations of the resident’s rights act. There was no abuse of discretion in awarding $100,000 in damages despite resident’s diminished mental status. That portion of the judgment awarding $50,000 for loss of chance and acceleration of death was reversed because the record failed to show causation. The award of medical expenses was not error since the record supported resident’s need for a higher level of care and for therapy after the incident. The award of attorney’s fee in the amount of their one-third contingency fee was not unreasonable.

Norfleet v. Lifeguard Transp. Serv., 934 So. 2d 846 (La. Ct. App. 2006). Plaintiffs moved for JNOV after jury failed to award wrongful death damages and allocated 70% of damages to ambulance service that had previously settled. Trial court modified award by increasing medical expenses and funeral expenses to reflect the actual damages evidenced at trial. The trial court also awarded 40% attorney’s fees and court costs. On appeal, the jury’s allocation of fault was not clearly erroneous so the trial court did not err in refusing to deny JNOV on that issue. Regarding the damages award in the survival action, “Mrs. Norfleet moaned, responded to pain by opening her eyes and moving, and had tears coming from her eyes. Thus, we do not find that the jury committed manifest error, was clearly wrong, or shocked the conscious by awarding $ 152,000 for two and a half months of pain.” After reviewing the evidence, the court reverse in part due the jury’s failure to award wrongful death damages. “Therefore, we must make an initial wrongful death damage award. Applicable jurisprudence provides that the range in wrongful death awards to major children in a close family for the death of an elderly parent ranges from $ 12,500 to $ 150,000, depending upon the evidence in the record. [citing Louisiana cases]” Reviewing 8 factors regarding the extent of work performed by Plaintiff’s counsel, the award of attorney’s fees was deemed reasonable.

Cockerham v. LaSalle Nursing Home, Inc., 930 So. 2d 239 (La. Ct. App. 2006). Jury found that nursing home and hospital were equally at fault. On JNOV, the trial court awarded damages for survival, medical expenses, funeral expenses and attorney’s fees. Court of appeals rejected nursing home’s argument that the trial court erred by redacting conclusions in the medical review panel report to the effect that the nursing home did not breach the standard of care and that its conduct did not cause plaintiff’s injury. Reviewing the language of La.R.S. 40:1299.39.1(G)(2), the court of appeals found that the trial court did not err by redacting the report. There was no manifest error in the jury’s allocation of fault, so it was not error to sustain it. There was no error in awarding damages on the survival claim or in the quantum of damages awarded. An attorney’s fee award of one-third was reasonable and was not an abuse of discretion.

Rush v. Senior Citizens Nursing Home Dist., 212 S.W.3d 155 (Mo. Ct. App. 2006). Defendant appealed following entry of judgment on verdict and denial of its motion for JNOV. Resident died after he went into a diabetic coma. His doctor had ordered insulin on a sliding scale with his blood sugar to be checked at least daily. Plaintiffs were able to show that on numerous occasions, insulin was not given as directed. On May 22, 2002, the resident’s blood sugar was 493 and 540, but no insulin was given; then next day he was found unresponsive and died on May 31, 2002. The defendant, a nursing home district, argued that it had sovereign immunity. The court found that sovereign immunity was waived by R.S.Mo. § 198.003 et seq. The court found that official immunity did not apply to individual defendants because their acts were ministerial; there was no discretion because the sliding scale order indicated that if the resident’s blood sugar was between certain levels, then a stated amount of insulin was to be administered. Defendants argued their motion for JNOV should have been granted because no expert testimony was provided regarding the standard of care; however, defendants testified at trial that the standard of care is to follow the doctor’s orders. Finally, Defendants argued that their motion for JNOV should have been granted due to plain error when statements in Plaintiff’s closing “were not based upon evidence and injected the issue of punitive damages.” The court rejected this argument because there was no trial objection and because Defendants failed to show any manifest injustice or a miscarriage of justice.

Miller v. Levering Reg’l Health Care Ctr., LLC, 202 S.W.3d 614 (Mo. Ct. App. 2006). The resident had a history of falling, was left unattended in a dining hall and fell, hitting her head. Following the fall she was given a neurological assessment every four hours, but testimony at trial showed that the standard of care was every two hours. Further, she was not assessed at all between midnight and 5:15 the next morning when she was discovered unresponsive; she died soon after transport to the hospital. Jury awarded $10 on the wrongful death claim; $240,000 in aggravating circumstances damages and $150,000 on lost chance of survival. Defendants filed a motion for JNOV, new trial and remittitur, all of which were denied. On appeal the facility argued it was error to allow aggravating circumstances damages; the court of appeals rejected that argument, finding there was clear and convincing evidence that the facility knew it was dangerously understaffed, failed to take any action and thus knew or had reason to know there was a high probability that a patient would be deprived of crucial treatment. The court rejected Defendant’s argument that the damages were excessive; the award demonstrated a calm and reasoned approach by the jury. A mention of a deficiency was found to be non-prejudicial and mention of subsequent remedial measures was waived due to no request for further relief despite there being a motion in limine. Finally, the court rejected Defendants’ argument that JNOV should have been granted because plaintiff did not establish the standard of care for monitoring the dining hall. The court found the absence of evidence on that issue was not dispositive because “the jury was required to find negligence if Levering was negligent for failing to supervise Birkhead, failing to monitor Birkhead, or failing to provide sufficient staff. Finally, there was ample evidence that, if Levering had more employees, the necessary neurological assessments would have been done.”

Alston v. Britthaven, Inc., 628 S.E.2d 824 (N.C. Ct. App. 2006). “Plaintiff presented expert medical testimony that the cause of Mr. Alston’s death was septicemia, or an infection which entered into his bloodstream. Plaintiff argued the cause of the infection was the pressure sores which defendant negligently failed to prevent. Defendant presented conflicting expert medical testimony that the cause of death was Alzheimer’s dementia, a terminal illness.” The trial judge refused to let the jury consider pain and suffering prior to death and only submitted the wrongful death claim to the jury. After a defense verdict was returned and motion for new trial was denied, Plaintiff appealed. On appeal, the court found that Plaintiff properly pled a survivorship claim and presented substantial evidence at trial to allow a jury to conclude the Defendants negligently allowed resident to develop pressure sores and that they caused pain and suffering prior to death. Because the jury never determined whether Defendants’ negligence caused pre-death injuries even though the pleadings and evidence at trial would have allowed them to do so, Plaintiff was granted a new trial.

Glass v. Continuing Care Nursing and Reh. Ctr., 2007 Phila. Ct. Com. Pl. LEXIS 79 (Phila. Ct. Com. Pl. 2007). After a jury returned a verdict for the Estate, Defendants field a motion for new trial. The action was brought against the doctor, and the nursing home and several employees after resident suffered anoxic brain injury when she dislodged her tracheostomy tube. Prior to trial all parties except the doctor settled and the trial proceeded against the doctor alone. Among other matters, Plaintiffs’ expert testified tha “[i]t is the responsibility of the attending physician to coordinate the patient’s care through counseling the nurses, issuing orders to the support staff and requesting consultations from appropriate specialists.” As a result of the testimony elicited on cross examination, the court concluded that it was error in failing got place some or all of the settling defendants’ names on the verdict sheet and that the error could have affected the outcome of the case. New trial was granted. Decided: March 15, 2007.

Heritage Hous. Dev., Inc. v. Carr, 199 S.W.3d 560 (Tex. App. 2006). A survival action was brought against nursing home and its corporate parent. A jury found that the nursing home, the parent and three employees were negligent, awarding $2,204,000. The trial court denied motions for judgment notwithstanding the verdict and Defendants appealed. On appeal the court found there was insufficient evidence to support a verdict against the corporate parent and that because including the parent in the negligence charge could have affected the jury’s apportionment of liability, the case was remanded for new trial. Plaintiff’s evidence was summarized as follows: “Carr contends the employment paperwork the nursing home staff completed that has HHD’s name on it, or refers to HHD as the employer, demonstrates HHD’s employment of the nursing home staff and establishes HHD’s vicarious liability. Carr points to employment-at-will statements, job description acceptance forms, substance abuse policy notices, Equal Opportunity Employment statements, acknowledgment of time clock procedures, no solicitation policy notices, ethics and conduct policies, disciplinary and termination forms, and receipt of employee handbook acknowledgments as evidence supporting a finding that HHD employed the nursing home staff. Carr also observes that the nursing home used administrative manuals containing HHD’s policies and procedures, thus further indicating that HHD controlled the details of the work performed.” The court found, though, that the trial testimony showed the facility controlled patient care; Plaintiff failre to controvert evidence that local administration controlled operations. The documentary evidence Plaintiff presented was insufficient to hold the corporate parent liable where the evidence at trial showed that patient care was controlled by the facility. The corporate parent also argued that Plaintiff failed to file an expert report reciting its malpractice; Plaintiff countered that an expert report was not required because the parent was not a health care provider. The court of appeals found that Plaintiff’s position could not be squared with its argument that the jury found the parent laible for negligent care. The court rejected the facility’s argument that it could not be vicariously liable for the conduct of its employees; sufficient evidence existed to hold it liable for the conduct of its staff and for hiring. Decided: August 3, 2006. Prior decision at Heritage Hous. Dev., Inc. v. Carr, 2006 Tex. App. LEXIS 4535 (Tex. App. 2006), decided May 25, 2006.

B.T. Healthcare, Inc. v. Honeycutt, 196 S.W.3d 296 (Tex. App. 2006). Resident suffered from pressure ulcers at two different nursing homes. After filing suit, Plaintiff settled with on nursing home, but not the other. When the claim went to trial the jury found that the non-settling nursing home was 51% liable and Resident was 49% liable. After entry of judgment in the amount of $270,300, the non-settling nursing home claimed it was entitled to credit for the amounts paid by the settling nursing home. The trial court denied the motion. On appeal, the court found that the settlement agreement, which covered all claims brought in the lawsuit, was not sufficiently limited to prevent the non-settling Defendant from claiming credit. The court rejected the non-settling nursing home argument that the jury should have considered the negligence of the settling nursing home because no evidence was provided showing that the settling nursing home was a substantial factor in causing the injuries argued at trial. The court accepted Defendants’ argument that only those medical expenses directly related to the injury could be charged. The court rejected Defendants’ argument that resident was unable to experience pain and suffering due to his quadriplegia. The judgment was reversed and the case was remanded for new trial. Decided: May 18, 2006.

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