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Nursing home's earnings misrepresented during trial, lawyers argue

CHARLESTON, W.Va. -- Lawyers representing a Charleston nursing home that was recently sued for $91.5 million argued in a recent court filing that multiple errors during the trial -- including a misstatement of the earnings of the home's umbrella corporation -- make the massive jury award illegal.

 

Brian Glasser, who represents Heartland of Charleston and its parent company, HCR Manor Care, asked a judge in a court filing this week to grant a new trial, reduce the award substantially, or drop the case completely based on the errors.

According to Glasser, lawyers for Tom Douglas, who sued Heartland in 2009 after his 87-year-old mother died shortly after her stay in the Charleston home, told a jury that HCR Manor Care made $4 billion in profits in 2009 based on a tax return statement from that year.

The lawyers did not instruct the jury that that number was the corporation's gross revenue. With expenditures factored in, Manor Care made $75 million in taxable income, "multiple orders of magnitude less than $4 billion," Glasser said in the pleadings.

"Plaintiff's counsel repeatedly mischaracterized Manor Care Inc.'s finances based on the tax return," Glasser wrote, "and did so for the sole purpose of inflaming the jury to award punitive damages."

In Sept. 2009, Tom Douglas admitted his mother Dorothy into Heartland of Charleston until a bed opened up at another facility near Huntington. Dorothy Douglas suffered from Alzheimer's and dementia, but could still walk and recognize her family members.

But after three weeks in Heartland, the woman's health was alleged to have declined dramatically. Staff at the home failed to make sure Dorothy had enough water and that she was eating properly, lawyers said at the trial. On several occasions, Douglas told his mother's nurse aides that the woman was not getting enough to drink, and asked them to make sure she had water next to her bed at all times.

Dorothy also fell twice while at the home, and staff forced her confinement to a wheelchair, according to trial testimony.

By the time she was transferred to the Huntington home, Douglas was unresponsive, she had lost 15 pounds and severe dehydration had driven her to the brink of death, Douglas' lawyers said.

In August, after a trial that lasted nearly two weeks, a Kanawha County jury found that nurse aides at Heartland negligently caused Douglas' death by failing to keep her properly hydrated and awarded Tom Douglas $91.5 million.

Zakaib reduced the award to about $90.5, after noting in a judgment order that a small portion of the verdict should be subject to the state's medical malpractice caps. The caps, which state lawmakers instituted under West Virginia's Medical Professional Liability Act about a decade ago, prevent plaintiffs in lawsuits alleging medical malpractice from recovering more than $500,000 in non-economic damages.

But the jury in Douglas' case classified only a small portion of the home's negligence as "medical". Douglas' lawyers argued that Dorothy died because the staff failed to give her food and water -- basic human needs that don't require a medical degree to dole out.

According to Glasser, the cap statute broadly defines a nursing home as a health-care facility, and any negligence from workers in such a facility is defined as medical negligence.

"All of the acts of omissions at issue are covered because they were performed (or should have been performed) for Ms. Douglas during her stay -- or "confinement" -- at Heartland," Glasser wrote. "The entire judgment ought to be capped."

Glasser also argued that the verdict form the jury used during the trial did not specify damages for each defendant named in the suit, and instead lumped them together, denying their rights of having a separate determination of liability.

The verdict form also directed the jurors to give a $5 million award to Douglas' sister Carolyn Douglas Hoy, who wasn't named as a party in the lawsuit.

Reach Zac Taylor at Zachary.Taylor@wvgazette.com or 304-348-5189.


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