Litigation

Revisiting the $28 million bedsore in California

By Ted Frank

We are accused of "intellectual dishonesty and callousness" for summarizing a case where a Sacramento jury awarded $28 million in punitive damages for a fatal bedsore with the sentence "$28 million in punitive damages for bedsore in Sacramento."

Not sure where the dishonesty was there, especially given the availability of more information in the links: as those links noted, 79-year-old Francis Tanner fell and fractured her hip in a nursing home; she then died from a bedsore—the same ailment that killed Christopher Reeve, who had the best round-the-clock medical care money could buy, as well as numerous other invalids. A jury found the nursing home liable, even though the deadly pressure sore occurred in a different facility. We weren't hiding anything. If anything, the case was far more egregious than we hinted at.

The "compensatory" damages for the wrongful death were $1.1 million, which is a figure that clearly already includes a punitive element, and is certainly more than deterrence enough for nursing homes to take reasonable measures to attempt to protect their inhabitants from gravity and from side effects from immobility. Punitive damages were then assessed at an illegal 25.5:1 ratio over the already-inflated compensatory damages figure. The punitive damages were also biased because the jury heard evidence of the defendant's balance sheets, which means that the company was being punished for its size, rather than for its conduct. That's hardly just.

Though this runaway jury verdict is likely to be reined in by the trial or appellate courts, the nursing home community is still on the hook for disproportionate millions of dollars. (And given that the jury was so obviously prejudiced when it came to the damages question that remittitur is all but mandatory, I see no reason to think that they were reasoned when resolving the liability question, though I recognize that courts mysteriously assume otherwise.)

By 1998, one out of every four Medicaid dollars in Florida spent on nursing homes was going to pay for tort litigation, in large part because of regular multi-million dollar awards for common events like bedsores. Tort reform in Florida prevented nursing homes being driven out of business; the reform was supported by even the AARP, which recognized that jackpot damages were hurting the elderly in the long run—and that trial lawyers were being far more "callous" about the problems of the elderly because they were putting trial-lawyer profits ahead of people than any proponent of reform was.

I can be accused of assuming too much knowledge in my readers; just because I immediately remembered a 2005 POL column discussing the issue or years of Overlawyered posts on the subject doesn't mean someone coming to a new post in 2010 recognizes the shorthand for the problem. So I'm guilty of failing to repeat myself to unpack the issue of bedsore liability, an inherent problem in any roundup post, given that any given bullet point could be expanded to hundreds of words—similar quibbles can be made with the Turkewitz roundup that alerted me to the criticism. But I note that Crede says nothing in his post that defends the utter lawlessness of the verdict, which was the central point of the links.

Full post as published by Point of Law on June 14, 2010 (boomark / email).