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$90.5 million verdict to head to WV Supreme Court

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A Kanawha County Circuit Court case in which the jury awarded $91.5 million to a family alleging a nursing home's neglect caused the death of a resident is once again heading to the West Virginia Supreme Court after the circuit judge recently denied nursing home attorneys' motion for a new trial.

Tom Douglas filed the suit in 2010 against Manor Care Inc., HCR Manor Care Services Inc., Healthcare and Retirement Corp. of America LLC and Heartland Employment Services LLC. Douglas alleged his 87-year-old mother, Dorothy Douglas, died as a result of severe dehydration and neglect from the nursing home.

Noting Douglas' death certificate, nursing home officials argued Douglas died from dementia, not dehydration. Officials also say Douglas was transferred to Hospice and died 18 days after she was released from Heartland.

A Kanawha County jury awarded $91.5 million to Douglas and held Heartland responsible for ordinary and medical negligence, violation of fiduciary duties and violations of the Nursing Home Act.

Approximately $11 million was awarded for the death and $80 million was awarded to punish the nursing home for misconduct.

The Kanawha County circuit judge later determined that caps did apply but only to one of these parts, reducing the verdict to $90.5 million.

Then came the first appeal to the Supreme Court. Nursing home attorneys filed for a writ of prohibition. That interrupted and stayed circuit court rulings on post-trial motions and sought to address asserted errors in a previous jury verdict form.

In a previous interview, Mike Fuller, Douglas' attorney, said defendants had opposed a previous jury verdict form in an Aug. 4 charge conference and ended up working off the plaintiff's form.

The proposed verdict form sought to address other issues outlining alleged errors in the court's decisions during trial.

State Supreme Court justices later granted the writ.

This time around in the Supreme Court, nursing home attorneys are appealing the full case and asking whether the Medical Professional Liability Act applies to nursing homes and whether it will apply to the whole verdict, not just part of it.  

In their appeal, nursing home attorneys argue the MPLA supersedes the Nursing Home Act.

"The courts in West Virginia have never accepted plaintiff's counsel's novel theory of MPLA apportionment," nursing home attorneys said in a news release. "Moreover, to our knowledge, no court anywhere has ever applied this apportionment approach to MPLA-type caps on medical malpractice liability.  

Debate surrounded the verdict award. Plaintiffs argued liability caps under the Medical Professional Liability Act would not apply to the case because the jury returned the verdict that 20 percent of the responsibility for the negligence claim dealt with medical professional negligence and 80 percent was ordinary negligence.

Therefore, plaintiffs argue, 20 percent would fall under the legislation and 80 percent would not.

Defendants, meanwhile, argued that a portion of the verdict would be reduced because it did fall under the act. In a previous hearing, attorneys argued medical professional negligence damages should be capped at $594,000.

There also was debate in that hearing whether nursing aides are classified as employees of the nursing home. If not, they would not be covered under the MPLA because it would be ordinary negligence instead of medical malpractice.

In addition to questioning the verdict amount, nursing home attorneys also say the judge erred by granting Douglas' attorneys' a verdict form that did not ask whether each defendant was individually liable.

"The statute explicitly requires the jury to answer questions about the specific liability of each defendant," the statement continued.

Nursing home attorneys also took issue with the verdict form because they say it allowed the awarding of damages to Carolyn Hoy, Douglas' daughter, who was not a party in the suit.

However, Douglas' attorney said the money would go to the children anyway and instead of specifying on the form that it would go to the estate, the money would go to the children directly. The attorney also argued that the other side did not object to the verdict form.

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