Nursing Home Medical Malpractice Lawsuit - Consumer Justice Foundation

Nursing Home Medical Malpractice Lawsuit

Written by Faith Anderson on September 6, 2011
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WV Family Files Medical Malpractice Lawsuit

The medical malpractice lawsuit was filed in 2010 by a family member of Dorothy Douglas, a resident of Heartland of Charleston nursing home in West Virginia. The plaintiffs claim that Douglas died as a result of severe dehydration and neglect on the part of the nursing home staff. The lawsuit was filed against Manor Care, Inc., HCR Manor Care Services, Inc., Healthcare and Retirement Corporation of America, LLC, and Heartland Employment Services, LLC. “She walked in on a walker and was able to communicate when she first got there,” claims Mike Fuller, attorney for Tom Douglas. “Within 20 days, she was rolled out. She was in a comatose state, unresponsive, not walking, not able to feed herself.” According to Fuller, Douglas’ son worked relentlessly to have her transferred out of the facility, but the necessary paperwork wasn’t filed in order for her transfer to take place.

Applying Medical Liability Caps to Wrongdoing by Health Care Providers

According to Heath, “The Legislature in 2003 said it was concerned with the impact that large verdicts can have in nursing home care and the number of beds available for residents needing care.” He points out that a Tucker County Circuit Court case dealt with a similar issue, in which a family member sued Cortland Acres claiming the facility’s negligence caused the death of a resident. In this case, the court determined that the description of a health care provider as defined by the West Virginia Legislature would apply to a nursing home or assisted living facility. Court documents state, “The MPLA makes it clear, then, that if a plaintiff makes any claim – no matter how styled – against a health care provider based on allegations that the health care provider either wrongfully rendered or failed to render any act or treatment performed or furnished or which should have been performed or furnished … such claim is governed by the MPLA.” Heath argues that by “splitting hairs” on which services are included in the legislation and which aren’t, “you’re talking about a legal nightmare, where every case would have to litigate an issue within the reform.” He continues, “Where it gets into danger is if you allow one loophole, there’s argument for another exception.”

Arguments Against Medical Liability Caps for Nursing Home Negligence

Fuller argues, however, that there are a number of reasons that these medical liability caps don’t apply to the Douglas’ case. First, because the jury ruled that the defendants were directly responsible for their actions. When the Kanawha jury returned the verdict, they assigned 20% of responsibility for the negligence claim to medical professional negligence and 80% to ordinary negligence. By these standards, 20% would fall under the legislation but the other 80% would not, Fuller explained. Second, Fuller argues, these caps were put in place “in fear of doctors leaving the state because practitioners were paying so much into their insurance premiums.” Manor Care, however, owns its own insurance company and is essentially paying itself for its own premiums. Therefore, Fuller claims, the cost of insurance premiums doesn’t apply here.

“A lot of people are asking who is worth $90 million,” says West Virginia Association for Justice President, Paul T. Farrell Jr., “but it’s hard to put a value on anyone’s life.” In addition, Farrell explains that only $11 million was awarded to Douglas’ family for her death, while punitive damages accounted for the other $80 million, awarded to punish the nursing home for intentional misconduct. “To the extent that people are arguing that it is subjected to the medical malpractice cap, they don’t understand that a large bulk of it is punitive,” Farrell argues. “It’s not governed by the medical malpractice cap.” In the meantime, the trial court will review this verdict, along with several post-trial motions, and if either side is unsatisfied, they can appeal to the West Virginia Supreme Court.

Posted Under: United States
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