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Judge denies new trial in nursing home lawsuit

Apr. 12, 2013 @ 12:45 PM

CHARLESTON, W.Va. (AP) — A $90 million verdict against a Charleston nursing home will stand for now after a judge denied the business owner's request for a new trial.

Kanawha County Circuit Judge Paul Zakaib Jr. ruled Wednesday that the verdict appropriately punished Heartland of Charleston's corporate owner, HCR Manor Care, for a history of intentionally short-staffing nursing homes to maximize profit, The Charleston Gazette reported Thursday.

Tom Douglas claimed in the lawsuit that his 87-year-old mother died of dehydration and complications stemming from her 19-day stay at Heartland of Charleston in 2009.

Manor Care lawyers raised several claims, including that the damages should have been subject to the state's $500,000 medical malpractice cap. They said they will appeal to the West Virginia Supreme Court.

"This is not a surprise. These rulings are consistent with those made during trial," Heartland lawyer Ben Bailey said in a release. "We believe they are wrong on the facts and wrong on the law."

The verdict was reduced from $91.5 million to $90.5 million soon after the 2011 trial after Zakaib ruled a small portion of the damage award fell under the $500,000 medical malpractice cap.

The lawsuit sparked a bill that is up for final passage Saturday that would place a limit on the amount nursing homes would be forced to pay if sued by placing them under the protections of the 2003 law that placed limits on medical malpractice lawsuits, including a $500,000 cap on non-economic damages.

If passed the law would not apply to the Heartland case. Even if it did, it would not affect the vast majority of the verdict because $80 million was awarded for punitive damages not covered by the legislation.

During her brief stay at the nursing home, the woman suffered head trauma from several falls and was confined to a wheelchair. She formed sores in her mouth that generated dead tissue that doctors had to scrape away with a scalpel, Zakaib wrote in his ruling.

Experts said during the trial that staffers at the nursing home also failed to provide the woman with basic needs, like food and water, which had been a contributing factor in her death.

"It is our hope that this will set an example," Douglas' lawyer, Mike Fuller, said of the verdict. "The community of West Virginia will not accept nursing home residents having to die from dehydration because of a corporation's failure to provide even a cup of water."

Heartland officials have said that the woman's death was a result of dementia, which is the stated cause of death on her death certificate. They also pointed out that she died 18 days after leaving Heartland.

Heartland had a history of violations, including temporarily losing its Medicare and Medicaid funding in 2011 after state inspectors found dozens of violations. In one instance, nurses' aides failed to assess a demential patient's head wound for several hours.

Zakaib also cited a 2009 survey that found the home was dangerously short-staffed.

One nursing care staffer, Tara Boweles, testified during the trial that conditions in the home were "horrible," saying: "I wouldn't put my dog there." She said patients sometimes would lay in their own urine and feces for hours.

Staff supervisor Beverly Crawford testified that employees feared getting fired for reporting patient neglect.

Zakaib found that short staffing issues arose as the company sought to keep margins high by hiring as few nurses' aides as possible. Tax forms presented at trial listed more than $4 billion in revenue in 2009, including $75 million in outright profit.

"Indeed, to accomplish punishment and deterrence of such a wealthy company, a punitive damage award must be necessarily high," Zakaib said in his ruling. "This verdict sends a clear 'deterrence' message to a multi-billion dollar nursing home corporation that its misconduct will not be tolerated in West Virginia."

 

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