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Judge denies new trial in $91.5 million nursing home verdict

CHARLESTON, W.Va. -- A judge has denied a new trial in an elderly neglect case that resulted in a $91.5 million jury verdict against Heartland of Charleston nursing home's billion-dollar parent company.

Kanawha County Circuit Judge Paul Zakaib Jr. issued a long-awaited ruling Wednesday, finding that the massive damage award was appropriately scaled to punish Heartland's corporate owner, HCR Manor Care, for what the judge called a history of intentionally short-staffing nursing homes to maximize profit.

Manor Care lawyers, who challenged the verdict on several issues, including that the damage award should be subject to the state's $500,000 medical malpractice caps, said that they will appeal the case 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."

Tom Douglas sued Heartland on allegations that his 87-year-old mother died of dehydration complications that stemmed from her 19-day stay at the facility in 2009.

While at the nursing home, the elderly woman suffered head trauma from several falls and was eventually 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 $90 million 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.

The Heartland home has had a checkered history of violations, mostly based on understaffing issues.

In 2011, federal authorities temporarily stripped the home's Medicare and Medicaid funding after state inspectors found dozens of serious violations, including at least one instance where nurses' aides failed to assess an elderly dementia patient's head wound for nearly half a day.

In his ruling Wednesday, Zakaib cited a 2009 state survey that found the home was dangerously short-staffed. During the 2011 trial, Manor Care Regional Director of Operations Mark Wilson testified that he knew the staffing issues were a problem.

One nursing care staffer testified during the trial that the conditions in the home were "horrible," and that patients would sometimes lay in their own urine and feces for hours.

"I wouldn't put my dog there," staffer Tara Bowles testified.

Staff supervisor Beverly Crawford said that an administrator reprimanded her for documenting patient neglect, and demanded that she remove the report from the books.

"You report something, you get fired," Crawford testified.

The administrators also falsified staffing schedules and intentionally miscalculated nursing hours to trick state regulators into believing the home was properly staffed, according to Zakaib's ruling, which cites evidence presented at trial.

Zakaib found that the nursing home's history of neglect was directly related to the short staffing issues, and company policy that sought to keep profit margins high by hiring as few nurses' aides as possible.

Manor Care's 2009 tax forms, which were presented at trial, listed more than $4 billion in revenue that year and assets worth nearly $8 billion. The company generated $75 million in pure 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."

Manor Care officials offered to settle the case for $150,000 during a mediation session, and raised the offer to $500,000 at one point, the ruling states. Douglas spent more than $200,000 in litigation costs alone.

In November 2011, Manor Care lawyers argued that the verdict should be subject to the state's medical malpractice caps, which limit the amount a jury can award in medical malpractice cases involving wrongful death to $500,000.

Zakaib said a small portion of the damage award fell under the caps, and reduced the verdict from $91.5 million to $90.5 million two months after the trial.

But he said in Wednesday's ruling that Heartland does not qualify as a "health-care provider" under state law. The medical malpractice law is intended to apply to health-care providers.

Heartland lawyers argued that Douglas' lawyers presented the company's financial information during the trial to inflame the jurors and mischaracterized its earnings by failing to compare the $4 billion in revenue alongside the $75 million in profit.

The Heartland lawyers also said the verdict form incorrectly lumped all of Manor Care's subsidiaries together as a single client.

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


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