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When you get a verdict in a nursing home negligence case, you generally are home free unless you lose on appeal. In this case, the appellate court affirmed the verdict to the chagrin of the plaintiffs’ lawyers.
Wait! What? Here is what happened. A woman suffers a stroke that causes the complete paralysis of all her voluntary muscles except her eyes. Just awful. The condition, known as “Locked-in Syndrome”, requires nursing home care. At the home, she suffers from a sacral decubitus ulcer, also known as a bed or pressure sore, at stage three. While in the nursing home, the ulcer progresses to stage four. Bed sores do not get any worse than stage 4. She transfers to another facility and dies. A nursing home lawsuit ensues.
During the trial, the plaintiff’s nursing expert testified that the defendant’s nursing home breached the standard of care. Another expert tells the jury of the standard of care regarding the defendant’s dietary practices, most notably the treatment of her diabetes. Plaintiff’s claim is fundamentally that the nursing home failed to provide adequate nursing care and nutrition that would have prevented decedent’s bedsores from healing. This just, as I’m sure was the case, made her worse and made her pain worse. But, while they allude to it, the experts never link up the pain and suffering to any breach of the standard of care.
The jury’s verdict gave thirty percent of the blame for the injury to the nursing home and awards $49,000 in the medical bills they attribute to the bedsore treatment. They gave no award for pain and suffering.
Like most personal injury lawyers, I have gotten post-trial remitter motions from defense attorneys who argue the jury’s verdict was just ridiculous. They define ridiculous typically as they didn’t like it.
There is at least a legal theory to add to the jury’s verdict when a plaintiff’s lawyer thinks the verdict was unduly low. The concept of additur, as the court describes, is the court’s power on a “motion for a new trial due to inadequate damages rendered by jury verdict, to require the defendant to consent to an increase to a stipulated amount of the award as a condition for denial of the motion for a new trial.”
Plaintiffs’ lawyers don’t file post-trial motion for additur to raise the verdict because you can’t in most states and the federal courts and because it is never going to work. At least in New Jersey, it is theoretically possible.
The lawyers here gave it a shot. It turns out as you would expect. The court basically says the jury did the right thing because there was no evidence of pain and suffering that should have gone to the jury, anyway.
You can find the court’s opinion in Davis v. Vineland Operations here.
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