Family Accepts Reduced Damages in Greenbrier Nursing Home Case

by Mark Friedman  on Monday, Oct. 28, 2013 12:00 am  

Michael Maggio

During the evening of April 6, 2008, Bull started having pain and began complaining.

“She complained all throughout the night [and] all through the next morning,” Buchanan said.

The next day, the nurse on duty sent a fax to Bull’s doctor, Dr. Gary Bowman of Greenbrier. But instead of describing Bull’s complaint about stomach pain, the nurse said Bull might be depressed.

It wasn’t until about 2 p.m. that day that Bowman was told about her stomach pain. In a fax, Bowman ordered Bull transferred to the emergency department for further evaluation.

The nurse who received the doctor’s order, though, “was about ready to leave for the day,” Buchanan said.

Instead of paging another nurse or delivering the order to the nurse’s station, the nurse faxed the message “to a newly installed fax machine in a closet located on Bull’s hall.”

The fax went unnoticed.

“Ms. Bull is screaming and hollering out in pain,” Buchanan said. “She died in her bed that night, never going to the hospital.”

The next morning, a nurse discovered the fax on the machine in the closet.

The Verdict

After an eight-day trial in May, a 12-member jury unanimously found that the nursing home was negligent, committed medical negligence and violated Bull’s rights. The jury awarded her estate $5.2 million. The jury, however, found that the nursing home didn’t cause her death.

The defendants then asked for remittitur — that is, a reduction — of the judgment or a new trial. Maggio agreed and reduced the award.

“The Court does not find any misconduct that warrants the granting of a new trial,” Maggio wrote. “However, the Court does find that the jury award of $5.2 million is so great that it shocks the conscience of the court. The Court also finds that the evidence, testimony, and argument by Plaintiff’s counsel inflamed the jury’s passion and prejudice resulting in an award that is punitive in nature.”

Buchanan said he wanted punitive damages, which are designed to punish a defendant, but Maggio wouldn’t allow that claim to go to the jury.

“We felt like it was a case that warranted punitive damages,” he said.



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