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Appellate Court substantially reduces verdict in medical malpractice wrongful death case

Burr Needham died while he was admitted to Mercy Memorial Nursing Center for rehabilitation after fracturing a hip in 2002.     While there, he died of an acute overdose of morphine administered by the nursing staff for pain management.  The Court of Appeals alluded to the fact that there was apparently a nursing error in record-keeping that allowed the fatal overdose.  Sadly, after an 11 year fight, the surviving family members still don't have a final decision in the case.

The jury awarded Needham's Estate $300,000.00 in economic damages and more than one million dollars in "non-economic" damages (in a death case this is basically the award of money to survivors for the loss of the society and companionship of the decedent during the period he would have lived but for the defendant's negligence, but it may also include conscious pain and suffering caused by the negligence).  The judge reduced the latter award to the higher statutory medical malpractice "cap" applicable to injuries that involve permanent brain damage. Mercy appealed the verdict; its doctor appealed the failure to award him sanctions since the jury vindicated his decisions; and the Estate appealed, arguing that the "cap" is unconstitutional when applied to a death claim.

The Court unanimously rejected most of Mercy's arguments as specious, but two of the three appellate judges did wipe out the family's economic damage claim and about one-half of its non-economic claim.  All of the judges agreed that Mercy's substantive arguments held no merit:  since the nursing staff had exclusive control over the morphine which caused the morphine death, the Plaintiff was not required to prove whether it was administered orally or by injection.  Furthermore, although the jury instructions should have identified the individual nurses who contributed to the error, since the standard of care applicable to all was the same, and the Nursing Home was vicariously responsible for the negligence of any, the instructional error was harmless.  All three judges also rejected the nursing home's argument that Needham's wife's objection to transferring him out of the nursing home's care should be deemed comparative fault by the Plaintiff.  Apparently, "you shouldn't have trusted us" is a stretch even for insurance-oriented judges.

All three judges also agreed that the nursing home could not claim it relied upon the wife's claim of a durable power of attorney where the relevant statute explicitly states that a DPOA is not implemented until a copy of the document is filed with the health care provider. Similarly, they rejected the doctor's request for sanctions because the pertiennt court rule explicitly states that a plaintiff who achieves an aggregate verdict that exceeds the aggregate case evaluation award shall not be sanctioned if one of the defendants achieves a smaller share of the award.

The judges disagreed on the damage awards, however.  Even though the Defendants acknowledged that Needham suffered a brain injury, was comatose and unable to communicate, and even though the Defendants relied upon his wife's durable power of attorney in addressing his medical needs, the two more insurer-oriented judges on this panel of the Court held that the Plaintiff's proof of permanent brain injury was inadequate to move the award to the higher medical malpractice cap (originally $500,000.00 but under a cost of living escalator, approximately $800,000.00 at the time judgment was entered).  This award was reduced to the lower cap (originally $280,000.00 and increased with the cost of living).

The insurance-oriented majority also wiped out the family's economic loss claim, even though there was testimony that Needham's struggling business had produced a about $48,000.00  per year in income and that he provided services to his wife.  The Court relied primarily on the fact that the plaintiff's attorney had suggested the month before trial that he would not pursue a claim for lost wages or earnings but "did not want to waive all economic damages until I look at it one more time..." 

Even though the court took some proofs on the subject of economic damages, the topic was argued by both counsel to the jury, the jury was instructed on economics without objection from the defendant, and there was modest support, the majority ruled that the evidence was insufficient to uphold the verdict--even viewed in a light most favorable to the prevailing party.


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