THEIR VIEW: Medical malpractice caps don't apply to nursing homes

By The West Virginia Record | Apr 26, 2013


After nearly two years since the original ruling, a $91.5 million jury verdict in a nursing home negligence case will stand -- for now. Kanawha County Circuit Judge Paul Zakaib found that the size of the award was appropriate for punishing the corporate owner of HCR Manor Care, Inc. for intentionally failing to fully staff nursing homes in order to reap the most profits.

The case came about after an 87-year old woman died of dehydration after a stay of just 19 days at one of the local nursing homes in 2009. The woman's son filed a lawsuit against the nursing home, and among the key findings were that she had suffered head trauma from numerous falls and developed sores in her mouth that had to be scraped away with a scalpel.

Furthermore, experts stated during the trial that the Manor Care staff failed to give the woman proper food and water, which may have contributed to her heath. After the case went against Manor Care in the amount of a $91.5 million verdict -- $80 million in punitive damages and $11.5 million in compensatory damages -- Manor Care showed intent to appeal to the West Virginia Supreme Court, arguing that the state's medical malpractice caps applied to this case, which would significantly reduce the amount to just $500,000 in non-economic damage. The other side argued that the medical malpractice caps were meant for physicians and were not meant to apply so broadly as to cover nursing homes.

The case eventually came back to Judge Zakaib for reconsideration. Judge Zakaib considered whether the medical malpractice caps applied and decided that they did not because Manor Care did not qualify as a "health care provider" under state law. Other details were discussed, including that Manor Care made $75 million in profit in 2009, and that in 2011, the nursing home lost its Medicare and Medicaid funding after state inspectors found numerous serious violations. Now that the circuit court has upheld the verdict, Manor Care once again vows to appeal to the West Virginia Supreme Court.

In the meantime, in a separate case, the West Virginia Supreme Court found that Congress never intended contract arbitration clauses to be applied to wrongful death cases -- so nursing homes could not use them to avoid wrongful death cases such as the one involving Manor Care. That case then went to the United States Supreme Court, which scolded the West Virginia Supreme Court for failing to consider the supremacy of the Federal Arbitration Act of 1925, and ordered it to reconsider the case. The West Virginia Supreme Court reconsidered the case within the FAA framework and found that an arbitration clause in a nursing home contract was "unconscionable."

It is questionable whether the West Virginia Supreme Court will affirm Judge Zakaib's ruling. But for now, families who lost their loved ones, and who have hired West Virginia nursing home negligence attorneys, ought to feel good about signs that the state court system will not try to stifle their ability to get justice. It would be disgraceful if nursing homes could starve and abuse their patients and get away with a mere slap on the wrist. If nursing homes knew that all they stood to lose was $500,000 in damages, too many would not hesitate to engage in harmful behavior if it meant increasing their profits. Hopefully the West Virginia Supreme Court will side with Judge Zakaib and find that the medical malpractice caps do not apply.

The Wolfe Law Firm is an Elkins personal injury firm founded by Dorwin Wolfe.

More News

The Record Network