Articles Posted in Nursing Home Negligence

elderlyNursing home negligence is an all too frequent topic in the news these days. As the population of the United States grows increasingly older, and young adults find themselves trapped between raising children of their own and taking care of their elderly parents, older individuals are more and more likely to spend time in a nursing home or assisted living facility. While many of these service providers have stellar reputations, quality care, and a genuine consideration for their residents, recent stories have highlighted the darker side of nursing homes.  In some cases, nursing homes prey on the vulnerable elderly members of society, subjecting them to abuse, neglect, and even death.

A recent case before the West Virginia Supreme Court deals with the tragic death of Robert Thompson, an elderly man suffering from Alzheimer’s disease who resided at Nicholas County Nursing & Rehabilitation, which is owned by CMO Management, LLC (“CMO”). Mr. Thompson died in July 2011 from injuries resulting from prolonged abuse and neglect, including hip fractures, malnutrition, and serious pain. In 2013, Wanda Williams filed suit on behalf of Mr. Thompson for negligence and wrongful death. She sought damages not only for what happened to Mr. Thompson but also for systemic problems with the nursing facility during the course of his time there from 2009 to 2011.

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retired.jpegRecently, the West Virginia Supreme Court heard the long-awaited appeal of a nursing home case where the jury verdict amounted to more than $90 million. The Supreme Court ended up reducing the punitive damages portion by nearly $50 million.

The facts began in 2009, when Dorothy Douglas was admitted to Heartland Nursing Home in Charleston. After less than three weeks, she became malnourished, dehydrated, bed ridden, and largely unresponsive. She also suffered from head trauma after falling numerous times. Douglas’s family eventually transferred her to a different nursing facility, before taking her to a hospice care facility, where she died 18 days after her departure from Heartland.

Douglas’s son, Tom Douglas, then filed a lawsuit against Manor Care, Inc., the company in charge of the nursing home. He claimed that Manor Care had acted negligent under the West Virginia Medical Professional Liability Act (MPLA), violations of the Nursing Home Act (NHA), corporate negligence, and a breach of fiduciary duty. After a 10-day trial, a jury in Kanawha County awarded Douglas $11.5 million in compensatory damages and $80 million in punitive damages.
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638305_reliable_cane.jpgAfter nearly two years since the original ruling, a $91.5 million jury verdict in a nursing home negligence case will stand — for now. Kanawha County Circuit Judge Paul Zakaib found that the size of the award was appropriate for punishing the corporate owner of HCR Manor Care, Inc. for intentionally failing to fully staff nursing homes in order to reap the most profits.

The case came about after an 87-year old woman died of dehydration after a stay of just 19 days at one of the local nursing homes in 2009. The woman’s son filed a lawsuit against the nursing home, and among the key findings were that she had suffered head trauma from numerous falls and developed sores in her mouth that had to be scraped away with a scalpel. Furthermore, experts stated during the trial that the Manor Care staff failed to give the woman proper food and water, which may have contributed to her heath. After the case went against Manor Care in the amount of a $91.5 million verdict — $80 million in punitive damages and $11.5 million in compensatory damages — Manor Care showed intent to appeal to the West Virginia Supreme Court, arguing that the state’s medical malpractice caps applied to this case, which would significantly reduce the amount to just $500,000 in non-economic damage. The other side argued that the medical malpractice caps were meant for physicians and were not meant to apply so broadly as to cover nursing homes.

The case eventually came back to Judge Zakaib for reconsideration. Judge Zakaib considered whether the medical malpractice caps applied and decided that they did not because Manor Care did not qualify as a “health care provider” under state law. Other details were discussed, including that Manor Care made $75 million in profit in 2009, and that in 2011, the nursing home lost its Medicare and Medicaid funding after state inspectors found numerous serious violations. Now that the circuit court has upheld the verdict, Manor Care once again vows to appeal to the West Virginia Supreme Court.

u_s__supreme_court_2.jpgThe United States Supreme Court recently dealt a blow to the West Virginia Supreme Court’s ruling on nursing home negligence. Back in June, the West Virginia Supreme Court ruled that nursing homes should not be able to insert arbitration clauses into contracts that prevent families of residents from suing if they believe that residents are being mistreated. The U.S. Supreme Court claimed that West Virginia’s decision did not conform to the requirements of the Federal Arbitration Act (FAA) of 1925.

The FAA provides that parties can agree via contract to deal with certain state and federal disputes through arbitration rather than litigation. In particular, the FAA states that state law that disfavors arbitration will be preempted by the FAA, unless the arbitration clause is found unconscionable. With arbitration, instead of a judge presiding over the case, an arbitrator — who is frequently neither a judge nor a lawyer — hears from both sides and makes a decision. Arbitration clauses are becoming increasingly common: once mainly inserted into employment contracts, they are now regularly inserted into consumer contracts and contracts for other services. In AT&T Mobility v. Concepcion (2011), the Supreme Court upheld the right of AT&T to insert an arbitration clause that barred class action lawsuits.

The West Virginia Supreme Court had found that the FAA did not apply to nursing homes because Congress never intended the FAA to apply to wrongful death or injury lawsuits. The U.S. Supreme Court disagreed, stating that West Virginia’s interpretation ” was both incorrect and inconsistent with clear instruction in the precedents of this Court.” The U.S. Supreme Court ordered the West Virginia Supreme Court to reconsider its decision using the FAA as a framework.

On June 29, 2011, the West Virginia Supreme Court in Brown vs. Genesis a case involving three deaths suffered at three separate nursing homes ruled on whether arbitration clauses, which were part of the nursing home admission agreement, should be enforced where there were acts of negligence. What would normally happen is someone would be admitted to a nursing home and the person or someone on their behalf would sign this admission agreement. Deep in the pages and pages of documentation was a binding arbitration agreement. That arbitration agreement was under the Federal Arbitration Act and claimed that if someone was injured through the negligence of a nursing home, that the person did not have the right to go through a civil jury trial, but it would have to be handled through arbitration.

The West Virginia Supreme Court wisely found a huge disparity existed in bargaining and negotiation. If someone gets put in a nursing home, they don’t read a 40-page document, and you should not be able to contract away your rights to receive proper care in a nursing home. Most people in a nursing home, their families are unaware that there was a mandatory binding arbitration agreement buried in the small print of the admission paperwork.

The West Virginia Supreme Court said “We therefore hold that, as a matter of public policy under West Virginia law, an arbitration clause in a nursing home admission agreement adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, shall not be enforced to compel arbitration of a dispute concerning the negligence.” The West Virginia Supreme Court issued a 99-page ruling arguments were heavily briefed and litigated by attorneys which litigation nursing home cases. Justice Ketchum delivered the opinion of the court, Justice Davis disqualified herself, as did Justice Benjamin, and Judge Gaudot was sitting in on temporary assignment in this case.

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