Name game leads to reversal of large jury verdict against nursing home

An appeals court in New Mexico last week reversed a $53 million nursing home wrongful death jury verdict which had been returned against Manor Care, one of the nation's largest operators of nursing homes.  The basis of the nursing home abuse and neglect suit was that the nursing home staff failed to recognize and treat the gastrointestinal bleeding that a resident was suffering from, resulting in the woman bleeding to death. 

The decision included approximately $3 million in compensatory damages and $50 million in punitive damages.  The law in Illinois does not permit the recovery of punitive damages where the victim is deceased.

The case in New Mexico had been commenced against Manor Care, which was the parent corporation of a subsidiary corporation which operated the nursing home.  The basis of the appellate decision in New Mexico was that there was conflicting evidence as to whether the parent corporation controlled the actions of the employees of the subsidiary.  The case was returned to the trial court for a new trial.

Nursing home chains are notorious for developing complex business structures which are designed to minimze the exposure of the parent corporation to legal liability for abuse and neglect of nursing home residents.  However, many parent corporations still retain extensive control over the day-to-day operations of nursing homes and set up the nursing home at the local level to deliver poor quality care to nursing home residents by providing inadequate resources to get the job done and by instilling a profits over people mindset with regard to the operations of the nursing home.

The moral of the story for anyone considering a nursing home abuse and neglect lawsuit is this:  the sooner you get the case into the hands of an experienced Chicago nursing home lawyer, the better.  Nursing home cases involve extensive investigation not only of the medical aspects of the case, but the legal ones as well.  The more time that the lawyer has to investigate the case before the expiration of the statute of limitations for nursing home cases, the better the outcome is likely to be.

$9 million verdict in wrongful death in electrocution

A South Carolina jury returned a record $9 million wrongful death verdict in a case where a young man died after being electrocuted by a power line which fell on his driveway.  He suffered severe burns from the electricity, and was initially responsive to questions from medical staff who attempted to care for him, but he ultimately passed away two hours after being burned due to cardiac arrhythmia and complications from the electrical burns he sustained. 

The verdict included $3.5 million in wrongful death damages and $5.5 million in punitive damages.  The basis of the jury verdict was the negligence of the power company in maintaining the utility pole and in failing to respond to request for repair.

This young man clearly sustained horrific injuries before passing away.  The compensatory damages in this case certainly would have included survival damages, which are assessed for conscious pain and suffering prior to death.  Evidence of his discussions with medical care staff no doubt served as evidence not only of the fact that he experienced conscious pain and suffering, but were probably important factors in driving the jury's assessment of damages.

As an experienced Chicago personal injury lawyer handling wrongful death cases, one thing that we do in wrongful death cases is carefully scour the medical records to identify witnesses who can establish the fact that the deceased experienced conscious pain and suffering. 

In one case I handled as a young lawyer, we represented the estate of a young man who died in a house fire.  One of the first witnesses we subpoenaed for deposition was a paramedic who found the young man seated in the back yard, praying.  His deposition set the tone for the case which eventually resulted in a significant settlement.  Evidence of this kind makes a huge difference in how insurers evaluate a case for settlement.

Appellate Court affirms $1.6 million judgment

A Wisconsin appellate court has affirmed a $1.6 million judgment in favor of a train conductor who was injured when the door to a train cab fell off its hinges and struck him.

The news story does not state that the case was filed as a FELA case, but given that it was filed by a railroad employee against the railroad, it is clear that was the basis for the lawsuit.  FELA makes railroads liable for injuries caused to its employees by defective equipment, and having a loose door on a train certainly qualifies as a legitimate FELA case.

Medical malpractice appeal turns on jury instruction

The Rhode Island Supreme Court affirmed a medical malpractice jury verdict in favor of a patient who had to undergo a kidney transplant.  The key issue on appeal is whether the trial court properly gave a jury instruction which in effect advised the jury that it could infer that evidence contained in a set of reports would have been unfavorable to the defendant doctor.  The Rhode Island Supreme ruled that the instruction was properly given based on the loss of a series of diagnostic reports.

In Illinois, there is a pattern jury instruction which addresses the same issue, which referred to by trial lawyers as the missing evidence or missing witness instruction.  In essence it advises the jury that they can infer that a item of evidence or a witness would have been unfavorable to a party in control of the evidence or witness if they believe that a party would have been produced the evidence in court had it been favorable to them.  That is a very long way of saying, "If it would have helped you, you would have brought it.  Since you didn't ...."  It is a powerful instruction to get because it gives teh lawyers a lot of latitude to argue just how bad the missing evidence would have been.

During my years of practice, I have seen the missing evidence or missing witness instruction used in a number of settings in personal injury lawsuits:

• In trucking accidents, based on the failure to prodice log books, supporting documentation, and shipping records;
• In slip and fall accidents, based on the failure to produce incident reports and security videos;
• In construction accidents, based on the failure to produce inspection records and actual items involved in accidents, such as a section of scaffolding;
• In nursing home abuse and neglect cases, based on the failure to produce patient records; and
• In medical malpractice cases, based on the failure to produce pathology samples, patient records, and policies and procedures.

One of the key factors that you need to convince a judge to give a missing evidence instruction is soem indication that the defendant knew that litigation was likely to result from an accident.  As experienced Chicago personal injury lawyers, one thing that we do early on in appropriate cases is issue "preservation letters" advising the defendant that there may be litigation and that they should preserve crucial documents and other items of evidence.  The preservation letters make it easier for judges to find that key evidence should have been preserved and to give a missing evidence instruction where warranted.  This is another reason that you should promptly consult counsel after a serious accident or wrongful death.