CHARLESTON, W.Va. -- Earlier this month, a jury awarded Tom Douglas and his family $91.5 million after deciding that staff in a Charleston nursing home caused the death of his dementia-stricken mother by not providing her enough food and water over a span of about three weeks in 2009.
As expected, lawyers for both Douglas and Heartland of Charleston are gearing up for a likely appeal to the state Supreme Court on grounds that the huge jury award may be subject to the state's controversial medical malpractice caps.
If the justices find that the caps apply, Douglas' nearly $100 million verdict may be reduced to $500,000 in non-economic damages, which include pain and suffering and punitive damages that make up the bulk of Douglas' award.
Douglas' lawyers are optimistic that the caps will not apply to the case, and claim that the nurse aides are not necessarily considered "health care providers" under the caps' definition.
"Understand what people are doing in the nursing home setting," Michael Fuller, of Mississippi-based McHugh Fuller, told the Gazette. "Most of the care is provided by the [nursing aides]. Aides don't necessarily constitute health care providers."
Fuller's firm, which represented Douglas, has filed more than a dozen lawsuits against Heartland of Charleston's umbrella corporation HCR ManorCare Inc. this year alone.
He said that because nursing aides are not qualified to give medication to patients or provide assistance in the same way that a licensed physician could, little to no medical negligence actually occurred in the Douglas case.
Douglas' mother Dorothy, 87, died because the aides at Heartland didn't keep her properly hydrated, which ultimately caused her death, he said. An individual doesn't need a medical license to provide a person their basic needs, he added.
"There's nothing 'mediciney' about that," Fuller said. "Common sense dictates you need to get them some water or they're going to dehydrate."
The jury seemed to agree.
The cap law also requires juries to determine the extent of medical negligence that occurred versus ordinary negligence. They found that Heartland and ManorCare were 80 percent at fault in ordinary negligence and 20 percent at fault in medical negligence. Douglas' lawyers argued throughout the trial that Dorothy's death was caused by ManorCare executives' repeated failure to keep their nursing homes properly staffed.
"In general, the medical malpractice act applies to health care services that are rendered to a patient," said Paul T. Farrell Jr., president of the West Virginia Association For Justice. "That's the definition of the statute. That's a very narrow application of what the cap applied to."
Fuller's firm has asked the association to join in the appeal.
In 2003, state lawmakers, citing a fear that high medical malpractice insurance premiums were diverting doctors from West Virginia, implemented $500,000 caps for non-economic damages on medical malpractice lawsuits involving wrongful death and other serious cases.
CHARLESTON, W.Va. -- Earlier this month, a jury awarded Tom Douglas and his family $91.5 million after deciding that staff in a Charleston nursing home caused the death of his dementia-stricken mother by not providing her enough food and water over a span of about three weeks in 2009.
As expected, lawyers for both Douglas and Heartland of Charleston are gearing up for a likely appeal to the state Supreme Court on grounds that the huge jury award may be subject to the state's controversial medical malpractice caps.
If the justices find that the caps apply, Douglas' nearly $100 million verdict may be reduced to $500,000 in non-economic damages, which include pain and suffering and punitive damages that make up the bulk of Douglas' award.
Douglas' lawyers are optimistic that the caps will not apply to the case, and claim that the nurse aides are not necessarily considered "health care providers" under the caps' definition.
"Understand what people are doing in the nursing home setting," Michael Fuller, of Mississippi-based McHugh Fuller, told the Gazette. "Most of the care is provided by the [nursing aides]. Aides don't necessarily constitute health care providers."
Fuller's firm, which represented Douglas, has filed more than a dozen lawsuits against Heartland of Charleston's umbrella corporation HCR ManorCare Inc. this year alone.
He said that because nursing aides are not qualified to give medication to patients or provide assistance in the same way that a licensed physician could, little to no medical negligence actually occurred in the Douglas case.
Douglas' mother Dorothy, 87, died because the aides at Heartland didn't keep her properly hydrated, which ultimately caused her death, he said. An individual doesn't need a medical license to provide a person their basic needs, he added.
"There's nothing 'mediciney' about that," Fuller said. "Common sense dictates you need to get them some water or they're going to dehydrate."
The jury seemed to agree.
The cap law also requires juries to determine the extent of medical negligence that occurred versus ordinary negligence. They found that Heartland and ManorCare were 80 percent at fault in ordinary negligence and 20 percent at fault in medical negligence. Douglas' lawyers argued throughout the trial that Dorothy's death was caused by ManorCare executives' repeated failure to keep their nursing homes properly staffed.
"In general, the medical malpractice act applies to health care services that are rendered to a patient," said Paul T. Farrell Jr., president of the West Virginia Association For Justice. "That's the definition of the statute. That's a very narrow application of what the cap applied to."
Fuller's firm has asked the association to join in the appeal.
In 2003, state lawmakers, citing a fear that high medical malpractice insurance premiums were diverting doctors from West Virginia, implemented $500,000 caps for non-economic damages on medical malpractice lawsuits involving wrongful death and other serious cases.
Doctors and advocates in the medical field have lauded the caps as a success, citing figures showing insurance premiums are on the downswing.
In 2009 for instance, the West Virginia Mutual Insurance Co. reported that the average mature annual premium for OBGYN's stood at $67,655 -- down from $113,678 in 2005.
Ear nose and throat doctors paid $42,011 in medical malpractice insurance premiums in 2005. In 2009, they paid a little more than $28,000.
Heartland hired Charleston law firm Bailey and Glasser to organize post trial motions and to prepare for the appeal in the Douglas case.
Lawyer Brian Glasser said that the 2003 statute is actually very broad and that the caps apply to any case that involves a licensed medical facility, including Heartland.
"It's clearly covered in the medical negligence statute," Glasser said. "It's a nursing home and they were providing medical care."
Chapter 55 of the state code outlines the Legislature's intended focus of the malpractice caps. The statute includes a paragraph specifically recognizing a need to curb increasing medical liability insurance premiums in nursing homes and noted that the number of claims per bed in the state had increased significantly up to 2003, when the law was passed.
"This is the purpose of this bill," said Richie Heath, the executive director of West Virginia Citizens Against Lawsuit Abuse. "This is the problem we are trying to address."
Heath pointed out that the statute also defines a health care provider as a "person, partnership, corporation...licensed in this state or another state to provide health care or health care services".
The statute specifically defines licensed or registered nurses as healthcare providers.
Glasser said he also intends to argue that though a normal person without a medical degree could conceivably have made sure that Dorothy Douglas had enough to drink, all care inside a medical facility must be defined as 'medical' under the cap law. The nurses' failure to keep Douglas hydrated must also be defined as medical, he said.
"Diet is an important part of care," he said.
Reach Zac Taylor at Zachary.Tay...@wvgazette.com or 304-348-5189.
