Close up image of a caretaker helping older woman walk

A verdict against a nursing home of slightly over $90 million is being reconsidered in West Virginia due to a verdict-form error.

Also questioned is whether nurse aides are considered healthcare providers under the law in malpractice cases.
Following the 2009 death of Dorothy Douglas at the Heartland of Charleston, an HCR ManorCare Inc. company, her son sued, alleging negligent treatment.

In 2011, a jury awarded $90.5 million in economic and punitive damages to Douglas’ family. Kanawha Circuit Judge Paul Zakaib reduced the damages by $400,000.

Each side of the case asked for its own version of the jury verdict form. Zakaib denied ManorCare’s version, and after the trial, ManorCare lawyers saw their version wasn’t included in the record. They asked for the record to be corrected, and in March, Zakaib refused. In May, the West Virginia Supreme Court said he erred by not allowing it to be in the record.

Lawyers for the Heartland of Charleston told Zakaib that the verdict form was faulty because it allowed the jury to award $5 million to Douglas’ sister, who was not part of the case.

That should be grounds to have a new trial, they argued, whereas Douglas’ lawyer said the verdict form’s wording was a minor point, according to local reports. 

ManorCare also is contesting the size of the damages award, saying that a medical malpractice cap should apply to nursing home cases and that the damages should be reduced to the compensatory limit of $594,000. West Virginia capped malpractice damages in 2003, but part of the question relies on whether nurse aides, under state law, are considered healthcare providers.

The post-trial hearing was held June 28. Zakaib can now order a reduction of the penalty, allow a new trial or let the West Virginia Supreme Court handle the appeal by allowing the award to stand.