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; the 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.