Posted 10/28/2013 12:00 am
A Perry County family has decided not to appeal a Faulkner County Circuit Court judge’s unusual decision to slash a $5.2 million judgment against the Greenbrier Nursing & Rehabilitation Center to $1 million.
“Ultimately, it’s the client’s decision,” said Thomas Buchanan of Little Rock, one of the attorneys who represented sisters Rosey Perkins and Rhonda Coppak, administrators of the estate of their mother, Martha Bull. Bull died at the nursing home in 2008. “We made our recommendations, and the client made the decision to go ahead and accept the reduced judgment.”
The plaintiffs received the $1 million on Aug. 26, according to court records.
Faulkner County Judge Michael Maggio ruled on July 11 that the sisters had the choice of taking the reduced judgment or facing a new trial of their lawsuit.
Buchanan said the family could have appealed Maggio’s ruling to the Arkansas Court of Appeals, but the appeals process would have dragged the case on for another 18 months or more.
And if they lost the appeal, there would have been a new trial. Going to trail again would have been risky for the plaintiffs because the defendants now knew Buchanan’s trial strategy. In addition, defendants usually win in civil cases.
Still, if Buchanan won the appeal, the court could have reinstated the $5.2 million judgment or awarded a lower amount.
“In the end, there was just no way that we could try the case again,” Buchanan said. “If it got affirmed, that’s great. … [But] we shouldn’t have to be put in that position.”
One of Greenbrier Nursing & Rehab’s attorneys, Jeff Hatfield of Little Rock, said Greenbrier is “a good nursing home” and the people who made the mistakes involving Bull no longer work there.
“The folks that are there are committed to providing good nursing care,” he said. “The situation is very, very unfortunate.”
Bull was 76 years old when she went into the nursing home for therapy after a stroke. She also was suffering from an abdominal abscess.
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.
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.