The Commonwealth of Kentucky Court of Appeals (“Kentucky Appellate Court”) affirmed the trial court granting the defendant nursing home a new trial in a case where the Kentucky nursung home negligence jury had awarded the plaintiff $18 million.
The jury awarded $4,000,000 for physical pain and suffering, mental anguish, and loss of enjoyment of life until the time of death; $500,000 for deprivation or infringement of right to be free from chemical and physical restraints except in emergencies or except as thoroughly justified in writing by a physician for a specified and limited period of time and documented in the resident’s medical record; $2,000,000 for failure to treat the resident with consideration, respect, and full recognition of dignity and individuality, including privacy in treatment and in care for personal needs; $500,000 for failure to inform the resident and responsible party or family member or guardian of the resident’s medical condition unless medically contraindicated and documented by a physician in the resident’s medical record; $1,500,000 for failure to suitably dress and maintain body hygiene and good grooming; and, $9,500,000 in punitive damages.
After the Kentucky jury returned its verdict against the defendant nursing home, the nursing home filed a motion for new trial or for judgment notwithstanding the verdict, renewing its argument that the resident’s rights claims were duplicative of the negligence claim. While the defendant’s motion was pending, the Kentucky Supreme Court issued its decision in Overstreet v. Kindred Nursing Centers Ltd. P’ship, 479 S.W.3d 69 (Ky. 2015) that specifically held that “actions otherwise brought to enforce rights created exclusively by KRS 216.515 must be brought by the ‘resident or his guardian’ pursuant to KRS 216.515(26), and therefore do not survive the resident’s death … To the extent that the claims are based upon liabilities created by KRS 216.515, and are not simply restatements of the common law personal injury action, KRS 411.140 does not provide for their survival beyond the death of the resident.”
The trial court granted the defendant nursing home’s motion for new trial, ruling that the nursing home resident died prior to the filing of the lawsuit and the Resident’s Rights claims under KRS 216.515 could not be pursued after her death. Therefore, the trial court found that the jury instructions were erroneous based on the recent Supreme Court of Kentucky decision, and, under the circumstances, the erroneous instructions created a material prejudice such that a new trial was warranted.
Kentucky Appellate Court Opinion
The plaintiff (the deceased resident’s estate) argued that the defendant nursing home waived its lack of standing defense, and that it was required to allege it specifically as an affirmative defense in its motion for directed verdict at the conclusion of the defendant’s evidence and again at the conclusion of all evidence as well as in its jury instructions.
The Kentucy Appellate Court stated that the defense was not available at the time suit was filed or during the trial itself, stating “we affirm [the trial court’s] holding that, not only had the [defendant] preserved the issue of standing, but also the KRS 216.515 claims were improperly submitted to the jury because the resident had predeceased the claim under the statute.”
With regard to the plaintiff’s argument that the trial court erred in ordering a total retrial on liability and damages rather than simply setting aside the portions of the verdict pertaining to recovery under KRS 216.515, the Kentucky Appellate Court cited the trial court’s ruling: “The inclusion of evidence offered to prove the [Estate’s] Resident’s Rights claims was so intermixed and comingled with the evidence that supported the [Estate’s] claim of negligence that the evidence became inseparable on the issues of liability (both standard of care and causation) and damages. This improper evidence tainted the evidence of proof offered on [the Estate’s] negligence and punitive damages claims, creating verdicts which were not separable post-trial (creating a scenario in which this Court could not “unscramble the egg”)” and held: “This was a complex case and required over a week to present to the jury. The circuit court certainly would have taken the easier path of separating the specific verdicts if it felt it was possible to do so. Instead it chose the harder task of ordering a complete retrial. The record supports this ruling, and we must uphold it.”
Jennings v. Berea Area Development, LLC, d/b/a The Terrace Nursing & Rehabilitation Facility, No. 2016-CA-001823-MR.
If you or a loved one suffered injuries (or worse) while a resident of a nursing home in Kentucky or in another U.S. state due to nursing home neglect, nursing home negligence, nursing home abuse, a nursing home fall, or the nursing home failing to properly care for a vulnerable adult, you should promptly find a nursing home claim lawyer in Kentucky or in your state who may investigate your nursing home claim for you and file a nursing home claim on your behalf or behalf of your loved one, if appropriate.
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