On June 28, 2012, the lawyers for the parties in a nursing home negligence case that resulted in a jury verdict in the amount of $90.5 million ($10 million for the alleged wrongful death of a nursing home resident and $80 million in punitive damages, based on claims of ordinary negligence, medical negligence, breach of fiduciary duty, and violation of the West Virginia Nursing Home Act) argued post-trial motions.
The verdict was in favor of an 87-year-old woman whose death the woman’s son alleged was due to severe dehydration and nursing home neglect but the nursing home claimed was due to the resident’s dementia (the woman died after 18 days in hospice care following her transfer to hospice from the nursing home).
The nursing home’s lawyers argued that West Virginia’s Medical Professional Liability Act (“Act”) would cap the damages at $594,000 (the amount in effect at the time of the woman’s death) because they believe that nursing assistants are “health care providers” under the Act (the Act defines “health care provider” as “a person, partnership, corporation, professional limited liability company, health care facility or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, hospital, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, psychologist, emergency medical services authority or agency, or an officer, employee or agent thereof acting in the course and scope of such officer’s, employee’s or agent’s employment”).
The plaintiff’s lawyer argued that since the jury found 80% of the negligence was “ordinary negligence” and only 20% was found to be medical professional negligence, only 20% of the verdict would be subject to the Act. The plaintiff’s lawyer also argued that the West Virginia Nursing Home Act and the West Virginia Medical Professional Liability Act are two separate and distinct statutes in West Virginia, that nursing assistants are not licensed medical practitioners and therefore are not covered by the Act, and that there is a distinction between medical malpractice and ordinary negligence.
Whatever the trial judge decides with regard to the post-trial motions argued on June 28, 2012, it appears clear that one or both sides will appeal the judge’s decision and/or the jury’s verdict. It is likely that the West Virginia Supreme Court of Appeals (West Virginia’s highest court) will ultimately be asked to decide whether the $90.5 million verdict will stand and, if not, by how much it will reduced and/or whether the case must be re-tried.
If you or a loved one were injured as a result of medical malpractice or ordinary negligence in a nursing home in West Virginia or in another U.S. state, you should promptly seek the advice from a local medical malpractice attorney to determine if you may have a claim for nursing home negligence, nursing home neglect, nursing home abuse, and/or medical malpractice.
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