July 17, 2013

162017_132140396847214_292624_nBy Order dated July 10, 2013, an Arkansas circuit court judge denied the defendant nursing home’s motion for a new trial but nonetheless eviscerated the $5.2 million verdict that a unanimous Arkansas jury had awarded against the local nursing home, finding that the 12-person jury’s verdict in the amount of $5.2 “is so great that it shocks the conscience of the court” (“the court” being this specific judge). Source The judge therefore reduced the verdict to an arbitrary amount: $1 million, despite his specific finding “that the jury was presented with substantial evidence to reach their verdict.” Source

What does “shock the conscience” mean in the Arkansas courts? “In determining whether the amount of damages is so great as to shock the conscience, the appellate court considers such elements as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. The determination is made on a case-by-case basis as “precedents are of scant value in appeals of this kind.” “A jury has much discretion in awarding damages in personal injury cases.” Source

Does it really “shock the conscience” that the Arkansas jury awarded the nursing home claimants $5.2 million under the following facts established during the trial: the 76-year-old resident of the defendant nursing home (the mother of the nursing home claim plaintiffs) was admitted to the nursing home on March 28, 2008 for an anticipated 30 days of rehabilitation following the woman’s stroke. During the night of April 6, 2008, the resident expressed that she was in severe pain and she was sweating and unable to have a bowel movement yet the nursing home did nothing to relieve her distress. The nursing home finally called a physician at 2:20 p.m. on April 7th. The physician ordered that the resident be transferred to an emergency room for evaluation. The nursing home’s director of nursing (“DON”) received the faxed physician’s order at 3:34 p.m., but she was leaving for the day. The DON faxed the order to a different fax located in a closet of the nursing home wing in which the resident lived but no one saw the fax. The resident was screaming in pain throughout the afternoon; so much so that residents on other halls complained. The resident was found dead at 10:20 p.m. on April 7th. The faxed physician’s order was found on April 8th. Source

The Arkansas judge who gave no effect to the unanimous verdict of the jury that heard all of the testimony and considered all of the evidence submitted by the parties during the trial had announced on June 27, 2013 that he is running for a position on the Arkansas Court of Appeals. In announcing his candidacy for the higher court, the judge stated, “I look forward to bringing a conservative philosophy to the bench. To borrow a baseball analogy, Arkansas needs strict constructionist umpires on the judicial bench to call balls and strikes, not activist judges who will redefine what the strike zone may or may not be.” Source

Does it appear ironic and cynical that a judge who self-identifies as a conservative, a strict constructionist, and a non-activist judge would take the most activist and intrusive judicial action possible by casting aside a jury’s unanimous verdict and imposing his own will and decision by his July 10, 2013 Order?

This same judge is not new to controversy: in 2010, the Arkansas Ethics Commission fined the judge $500 and issued a public letter of warning to him for allegedly taking campaign funds as personal income and failing to report how the money was spent during his 2008 election to be a judge. Source

In July 2010, when the judge’s car was pulled over for speeding, he allegedly flashed a badge in order to get out of a speeding ticket. The 20th Judicial District Prosecuting Attorney was quoted at the time saying, “I’m not aware of any judges that have badges, but that doesn’t mean they don’t have badges.” Two other circuit judges said at the time that they did not have badges; one of them said that judges have photo IDs that identify them as judges. Source

If you or a loved one were injured while a resident of a nursing home in Arkansas or in another state in the U.S., you should promptly contact an Arkansas nursing home claim attorney or a nursing home claim attorney in your state who may investigate your nursing home claim for you and file a nursing home case on you behalf, if appropriate.

Click here to visit our website to be connected with Arkansas nursing home lawyers or nursing home lawyers in your state who may be able to assist you with your nursing home claim, or call us toll-free at 800-295-3959.

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