$5,221,817.48 Verdict: Nursing Home Deaths and Punitive Damages
Henson Fuerst Attorneys Rachel Fuerst and Thomas Henson tried the lawsuit alleging neglect, corporate negligence, and wrongful death in Elizabeth City in the United States District Court for the Eastern District of North Carolina. The Defendants contended that they were not at fault and their actions did not cause the deaths. The jury returned a verdict in favor of the three families represented by Henson Fuerst on February 16, 2017. The judgment was $5,221,817.48, representing $650,000 in compensatory damages and $4,571,817.48 in punitive damages. Both outstanding interest and costs were later added to the judgment.
North Carolina law allows a jury to award punitive damages in certain cases to “punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts.” N.C. Gen. Stat. 1D-1. Defendants asked the trial court to throw out the awards of punitive damages, and the trial court threw out the punitive damage awards. Henson Fuerst attorneys recognized that the awards of punitive damages were right and appealed the removal of punitive damage awards to the United States Court of Appeals for the 4th Circuit. Defendants argued in opposition and also requested that one of the families’ compensatory awards be thrown out.
After a successful oral argument by Rachel Fuerst at the United States Court of Appeals for the 4th Circuit, the 4th Circuit Court of Appeals reversed the trial court in the first published opinion supporting an award of punitive damages in a nursing home case in North Carolina. Henson Fuerst attorneys were successful in having the awards of punitive damages reinstated to the three families, with agreed upon reduction in the overall punitive damages awards to meet North Carolina law ($2,050,000 total). Henson Fuerst attorneys were also successful in retaining the award of compensatory damages challenged by the Defendants.
After the Defendants balked at paying interest on the awards of punitive damages, Henson Fuerst attorneys returned to the 4th Circuit Court of Appeals to ensure that the families received proper awards of interest on the punitive damages awards. The result was the first opinion from the 4th Circuit Court of Appeals on the appropriate date for interest following a reinstated award. Pursuant to the request of Henson Fuerst attorneys, the three families received interest on the awards of punitive damages retroactive to the original date of the February 16, 2017 judgment.
Henson Fuerst attorneys Rachel Fuerst, Thomas Henson, and Carma Henson worked on this case from start to finish. They handled the depositions, the trial, the oral arguments, and the appeals. They successfully obtained payment from the Defendants for $650,0000 in compensatory damage awards and $2,050,000 in punitive damage awards, as well as payment of an additional $220,121,17 in interest on the compensatory damage awards, $31,292.93 in interest on the punitive damage awards, and $56,508.33 in awards of costs. The total recovered by Henson Fuerst attorneys for the three families was $3,007,922.43.
$6,500,000 Settlement: Husband and Wife Catastrophically Injured in Motorcycle Wreck
Plaintiff husband (driver of motorcycle) and wife (passenger) were injured when the defendant approaching from the other direction suddenly turned in front of them. Plaintiff husband suffered injuries including a subarachnoid brain hemorrhage, numerous severe facial fractures requiring extensive reconstructive surgeries, a shoulder labral tear, multiple fractures in his arm, and internal injuries. Plaintiff wife suffered injuries including extensive cervical fractures requiring surgery and halo, numerous severe facial fractures, shattered scapula and shoulder bones, and multiple other orthopedic fractures to extremities. Both had extensive life care plans that required treatment for ongoing cognitive deficits and other medical management for the remainder of their lives. Neither will be able to return to gainful employment in the future. The case was defended by an insurance company and their lawyer. The settlement was reached after suit was filed, depositions were taken, and a mediated settlement conference occurred. The settlement amount was fully collectible.
$1,500,000 Settlement: Nursing Home Death Caused by Illegal Drugging
Nursing Home Abuse, Wrongful Death
In violation of numerous laws, the plaintiff’s decedent and other residents of the nursing home’s Alzheimer’s locked unit were given unprescribed morphine by a nurse for the improper purpose of restraining and disciplining them. The plaintiff’s decedent later died at a different nursing home after discharge from the hospital.
Henson Fuerst Attorneys Carma Henson and Anne Duvoisin Fisher filed suit alleging abuse and neglect, corporate negligence, res ipsa loquitur, and wrongful death. The defendants contended it was not possible to prove that one of their staff members gave the unprescribed morphine, and contended that the morphine was not a cause of the decedent’s death.
On June 25, 2014, the parties participated in a mediation with opposing trial counsel and in-house counsel for the defendants in attendance, negotiating on their behalf. The defendants offered the plaintiff $100,000 at mediation, and informed the plaintiff that they anticipated obtaining a directed verdict at trial. The mediation impassed in short order.
Plaintiff’s counsel prepared for depositions of the defendants’ CEO and owners, scheduled for July 17. After the failed mediation, the defendants approached plaintiff’s counsel through another attorney not connected to their trial counsel. The case settled prior to one of the owner’s depositions on July 17 for $1.5 million (fifteen times what was offered three weeks earlier at mediation).
Neither defendants’ trial counsel nor their in house counsel participated in the negotiation that led to the settlement. Neither the name of the case, nor the county and court, nor the case number or the identity of defense counsel may be disclosed due to confidentiality provisions contained in the settlement agreement.
The case was settled one month before a peremptory trial setting. Special damages were de minimis. Liability and damages were contested. The plaintiff has been successful in collecting the entire settlement.
$3,000,000 Settlement: Wife and Mother Killed in Truck Accident
Wrongful Death, Truck Accident
The decedent was a 47-year-old woman who slowed for traffic ahead of her on a metropolitan North Carolina highway. She was rear-ended by a tractor-trailer that was traveling at approximately 45 miles per hour and failed to reduce speed. Immediately after impact, both the tractor-trailer and the decedent’s car were engulfed in flames. There was conflicting evidence as to whether the decedent was conscious when the vehicle caught fire.
The decedent is survived by a husband and three adult children. She was not working at the time of the accident, but spent the majority of her time helping with the care of her grandchildren and family.
The plaintiffs created a detailed settlement documentary video demonstrating the impact of the loss of the decedent to her family. One of the terms of the settlement agreement requested by the defendant corporation was that the video could be used as a training tool to improve safety awareness in the tractor-trailer fleet.
The case was defended by an insurance company and a team of two defense lawyers. The settlement was reached in 2013 after filing suit, and after two separate mediated settlement conferences. The settlement amount was fully collectible.
The family hopes the video will help prevent similar tragedies in the future.
$9,500,000 Settlement: Defective Roadway Construction Causes Driver to Suffer Traumatic Injuries
Brain Injury, Truck Accident
Our client, a 57-year-old armored truck driver, was driving on a highway during a heavy downpour when his vehicle hydroplaned, crashed into the median, and flipped upon striking the barrier.
As a result, he was hospitalized for acute and rehabilitative treatment for more than six months. He suffered significant brain injury at multiple levels—including internal bleeding; skull and neck fractures requiring a cervical fusion resulting in an 80 percent loss of range of motion; and multiple shunt procedures caused by hydrocephalus. He still requires assistance with daily activities.
Less than two months after his wreck, another vehicle was traveling on that same section of roadway during a rainfall when it hydroplaned and crossed through the median in the same place as the earlier accident. This accident killed several people in another car.
The North Carolina Department of Transportation found that this portion of road had been poorly constructed, which caused rainwater to drain incorrectly and potentially result in dangerous driving conditions. In fact, during our own investigation, we discovered that the crash ratio per million miles driven was almost 10 times higher for the zone containing this section of roadway, as compared to the statewide average.
We filed suit against the general contractor, the paving company, and the construction engineering inspection company for failure to:
- construct the road according to the plans and specifications,
- properly use automatic slope controls and other appropriate paving techniques during the paving process,
- and use proper inspection techniques to ensure conformance with the plans and specifications.
In addition, there were allegations of employer negligence for failing to properly maintain the armored truck, which ultimately resulted in a substantial reduction in the workers’ compensation lien.
We reached a settlement of approximately $9.5 million, which included: a $3.25 million lump sum cash payment; a waiver of a $2.4 million workers comp lien comprised of past medical bills and lost earnings; and a negotiation of an agreement with the workers’ comp carrier for continuing coverage of our client’s medical care and case management services for his lifetime, conservatively valued at approximately $4 million.
$700,000 Settlement: Choking Death in Nursing Home
Nursing Home Negligence, Wrongful Death
Our client, an 87-year-old nursing home resident, died after choking on a peanut butter sandwich. The nursing home was aware that our client suffered from dementia and was at high risk for choking. She was a voracious eater and suffered from dysphagia—or difficulty swallowing. In the lawsuit, Henson Fuerst Nursing Home Abuse lawyers alleged that the nursing staff violated our client’s care plan when they left her alone to eat.
The housekeeper who discovered our client while she was choking had not been trained to administer the Heimlich maneuver. She did not attempt to help because she believed the nursing home prohibited her from touching the resident. A nurse who came to our client’s aid also failed to perform the Heimlich maneuver. Instead, she attempted to suction the food out of our client, which pushed the obstruction further down her throat.
Numerous medical, nursing, and forensic experts were retained to prove liability and damages in the case.
The case, which took nearly six years to resolve, was vigorously disputed by an insurance company and a number of defense lawyers who routinely defend nursing homes. A settlement was reached in 2012, one week after mediation, and it was fully collectible.
$15,000,000 Verdict: Pain Medication Withheld from Terminally Ill Patient
Nursing Home Negligence
We represented the estate of an elderly man who was diagnosed with end-stage terminal bone cancer. Medical experts involved in the case testified that end-stage bone cancer is one of the most painful conditions, and patients in this condition are incapable of becoming addicted to pain medications. The pain was so bad for our client that his doctors had prescribed liquid morphine.
The nursing home and one of our client’s primary care nurses decided to withhold pain medication from our client to save money for the nursing home and to keep him from becoming addicted to the pain medication in his final days of life. The nurse gave him a placebo—essentially water—while letting our client believe that he was receiving the prescribed pain medication.
The defendants and their lawyers vigorously defended their actions, arguing against both liability and damages.
At the time of the $15 million verdict, this was the largest nursing home verdict in the state of North Carolina and was reported in newspapers across the county from the Wall Street Journal to the San Francisco Chronicle. After the verdict, the case was later settled for a confidential amount of money. The settlement for our client was fully collectible.
$5,400,000 Settlement: Wrongful Death in Nursing Home from Bowel Impaction
Nursing Home Negligence, Wrongful Death
Our client, a resident of a nursing home, developed a bowel impaction that went untreated despite having extreme pain and a long list of symptoms that should have alerted the nursing home facility to his critical condition. After repeated requests for assistance, our client was taken to the hospital. He died shortly after arrival.
A number of corporations had ownership interest in our client’s nursing home facility, so we filed a lawsuit against all of them. Litigating this way, we were able to “pierce the corporate veil,” and prevail on many legal issues. In addition, federal Medicare regulations and state licensing regulations were admitted as evidence of the standard of care in nursing homes.
A team of defense lawyers and law firms represented the multiple defendants and their insurance companies. They denied that their clients had legal responsibility for our client’s fatal injuries. The case settled after three weeks of trial, just before closing arguments in the compensatory phase of the trial. The settlement for our client was fully collectible.
$1,000,000 Settlement: Wrongful Death in Nursing Home from Infection and Severe Weight Loss
Nursing Home Negligence, Wrongful Death
When our client was admitted to the nursing home facility, she weighed 160 pounds. At the time of her discharge, she weighed less than 90 pounds and suffered from multiple infected pressure sores. Our client subsequently died from sepsis and gangrene of the left foot.
We alleged numerous violations of the standard of care required of a nursing home, including failure to:
- perform adequate dietary consultations,
- accurately document the percentages of meals eaten so that adequate dietary interventions could be analyzed and implemented,
- timely assess and treat depression,
- timely and properly notify the physician and dietitian of significant weight loss,
- and properly involve the resident’s family in the care planning process and the management of the resident’s nutrition and development for the prevention of pressure ulcers.
The defendants’ lawyers contended that our client suffered from a failure to thrive, and her weight loss and other injuries were unavoidable. They also alleged that our client had suffered from multiple strokes over the course of her stay at the nursing home.
In addition, the defense relied heavily on numerous entries in the medical records that supported their theory of her failure to thrive, their awareness of the pressure ulcers and weight loss, and their opinions that the weight loss and pressure ulcers were the “expected outcome” of the failure to thrive condition.
Experts involved in this case included geriatricians, an emergency room physician, an internist, nurses, and registered dietitians.
Resolution of the case through either settlement or jury verdict was more complicated than usual because the nursing home had a “wasting liability insurance policy”—meaning that every dollar spent for defense fees or costs were deducted from policy limits, with the result that each activity done resulted in reduced coverage available to our client.
In the lawsuit, we also included for “piercing the corporate veil” against the insectionidual owner, who was from out of state and owned numerous nursing homes across the country. Significant discovery was conducted on this claim, including having the court compel production of tax returns of the five corporations that owned, managed, or controlled the realty, building, and management company of the facility.
In the end, we were able to reach the $1 million settlement. The final settlement for our client was fully collectible.
$1,000,000 Settlement: Nursing Home Patient Dies Due to Delay in Treatment
Nursing Home Negligence, Wrongful Death
We represented the estate of an 81-year-old retired and widowed LPN, who was survived by two daughters. Our client began experiencing classic signs of an ischemic blockage in her leg, which, according to the treating vascular surgeon and other experts, was an emergency medical situation.
However, the nursing facility delayed getting help for her, and by the time she was finally taken to the hospital, her only options were a very high-risk hip amputation or death. Had our client received prompt medical care, the blockage could have been fixed relatively easily.
We alleged that the delay in treatment caused her death. A nurse—one of the defendants in the case—contended that our elderly client was contributorily negligent because she made the choice against the high-risk hip surgery, and our client would not have survived even if she had received timely treatment.
On behalf of the estate, our firm sued the operator and management company of the nursing home, as well as several other insectionidual and corporate defendants. We also pursued a “piercing the corporate veil” theory of liability. The defendants were represented by multiple law firms and lawyers. Some of the defendants had insurance, while others had only personal assets. We sought compensation directly from their personal assets.
Under North Carolina rules, the plaintiffs and defendants must attempt to resolve their case through mediation. At the first mediation, the offer from all the defendants was $25,000. At a subsequent voluntary mediation, the offer increased to $250,000. Two weeks before trial, the offer went to $350,000. Prior to trial, an offer of judgment was filed in the amount of $850,000.
The case settled for $1 million at trial, just before jury selection was about to begin. The defendants denied liability throughout the case. The settlement for our client was fully collectible.
$825,000 Settlement: Nursing Home Resident Dies from Bowel Blockage
Nursing Home Negligence, Wrongful Death
A resident in a nursing home facility, who developed a bowel obstruction that prevented him from having a bowel movement and caused extreme pain, asked the nursing facility to send him to the hospital for emergency assistance. The staff in the nursing home denied his request.
Our client then called 911 and requested an ambulance. When EMS arrived, the nurse at the facility sent them away and would not allow treatment of our client. Our client then began throwing up bowel materials and feces. Sometime later, the nursing home staff found him unresponsive and called 911. When the EMS ambulance arrived, our client was dead.
An insurance company and a number of defense lawyers who routinely defend nursing home facilities disputed the liability of the case. The nursing home only had liability insurance of $1 million, but also had a self-insured retention of $100,000, which served to reduce the amount of available insurance coverage. The settlement for our client was fully collectible.
$300,000 Verdict: Woman Suffers Pelvic Injury in Nursing Home and Dies
Nursing Home Negligence, Wrongful Death
Our deceased client lived in a nursing home facility for four years. She was non-communicative and had Alzheimer’s disease. During the last 15 months at the home, she sustained three major injuries, including a broken pelvis, which required surgery.
The time and cause of the woman’s broken pelvis were unknown and not discovered until after she had been hospitalized for four days. Therefore, the defense counsel argued that the pelvis must have been broken either while she was being transported by ambulance or during her stay at the hospital.
We took testimony from two of the patient’s treating physicians, who testified that she did not fall in the hospital and that her pelvis fracture appeared to date from the time when she was still in the nursing home.
In addition to suffering a pelvis injury at the home, our client also sustained a subdural hematoma when she fell forward onto her head from a wheelchair, which required hospitalization.
Her last and most significant injury was a broken femur, which occurred when a nursing assistant—in violation of the resident’s care plan—lifted our client from the wheelchair by himself to put her into bed. Our client twisted and broke her femur, which required immediate surgery. She died six days later. Our client was survived by her 90-year-old husband.
The defendants denied liability. The trial lasted two weeks and ended in a jury verdict. Prior to trial, the highest settlement offer had been $50,000. The jury verdict was $300,000, which was fully collectible.
$4,500,000 Settlement: Mother Suffers Severe and Permanent Brain Injury
Brain Injury, Auto Accident
Our client was visiting the United States from the Dominican Republic. She had been staying in New Jersey and was vacationing in North Carolina when she was involved in a car wreck.
Our client suffered a severe and debilitating brain injury, vertebral fracture, internal organ rupture, and chronic pain. Her permanent injuries require assistance with normal activities of daily life and will prevent her from working. She requires on-going medical care for the rest of her life.
She suffered severe injuries including: traumatic brain injury with resulting neurological deficits, fractured L1 vertebra, duodenal rupture, and chronic pain. Her medical bills were in excess of $450,000.
The defendant was represented by multiple lawyers who admitted liability for the crash, but disputed the proximate cause of our client’s injuries and the extent of them. As a part of our case, we retained experts in the following areas: accident reconstruction, neuropsychiatry, physiatry, life care planning, vocational rehabilitation, and economics.
We filed suit for our client in federal court. The case was presented for mediation with no settlement, but settled one month later. The entire settlement was collectible.
$1,750,000 Settlement: Police Officer Suffers Brain Injury and Permanent Eye Damage
Brain Injury, Truck Accident
A police officer suffered a severe and debilitating brain injury and permanent eye damage after being hit by a tractor-trailer that turned into him without using proper signals.
As a part of our case, we consulted experts in the following areas: accident reconstruction, engineering, police procedures, neuropsychiatry, neuropsychology, ophthalmology, vocational rehabilitation, and economics.
The truck driver and trucking company had insurance and were represented by defense counsel who vigorously disputed liability throughout the duration of the case. The case was settled several weeks before trial was scheduled.
As a part of the settlement, all other terms of the wreck and his injuries were confidential. The settlement for our client was fully collectible.
$1,600,000 Settlement: Woman Suffers Brain Injury in Dump Truck Accident
Brain Injury, Truck Accident
A 40-year-old woman was seriously injured when a dump truck failed to stop at a stop sign and ran over her vehicle, crushing it. She sustained severe injuries to her chest, including six broken ribs, a collapsed lung, a lacerated spleen, and an injured shoulder. She also suffered a traumatic brain injury caused by a lack of oxygen to her brain from the collapsed lung. The brain injury was so severe that our client will most likely never return to work.
Our client was hospitalized for about five weeks and then released on 24-hour, around-the-clock care at her home. She received extensive and long-term treatment from a team of doctors, including neuropsychiatrists, neuropsychologists, and other brain injury specialists.
A lawsuit was filed, and the defendants were represented by their insurance company and their team of lawyers. The defense admitted liability, but contested the damages. After extensive discovery and trial preparation, the case settled for $1.6 million, which was fully collectible.
$1,500,000 Settlement: Mother of Two Suffers Brain Injury in Car Wreck
Brain Injury, Auto Accident
A 31-year-old mother of two young children suffered a severe brain injury to her frontal and temporal lobes resulting in permanent personality changes and a decreased ability to concentrate, focus, and recall from her short-term memory.
During our preparations for our client’s trial, we retained experts in the areas of accident reconstruction engineering, vocation rehabilitation, economics, neuropsychology, neuropsychiatry, neurology, and radiology.
The highest offer at mediation was $200,000 even though liability was admitted prior to trial. The defense counsel for the defendant disputed the severity of our client’s brain injury. The case settled on the first day of trial. The settlement for our client was fully collectible.
$925,000 Settlement: Woman Requires Multiple Surgeries After Auto Accident
Our client was involved in a serious auto accident and suffered a severely fractured talus. She incurred medical bills in excess of $160,000 and lost wages of more than $100,000. Her doctors testified that it was uncertain if she would ever be able to return to working as an industrial chemical sales representative or another job of that type of capacity in the future.
In order to document our client’s injury, treatment, and rehabilitation, we extensively videotaped our client before and after surgery, during her physical therapy appointments, and through the full process of her recovery. We felt that video documentation was critical to ensure that a jury could understand what our client went through in the recovery process.
The defendant admitted liability, but disputed the damages. The defendant had an automobile liability insurance policy in the amount of $100,000 and represented that this was all of the available insurance coverage. We filed a lawsuit to further investigate, and we discovered that the defendant also had an umbrella insurance policy, which provided an additional $900,000 in insurance coverage.
The case ultimately resolved for $925,000, all of which was fully collectible.
$604,620 Verdict: Woman Suffers Permanent Swelling of Leg in Auto Accident
Our client was a passenger in a car that was hit by another vehicle. Even though the defendant admitted liability, our client’s damages and injuries were denied by the insurance company and its lawyer.
As a result of her accident-related injuries, our client sustained a permanently swollen ankle that was larger than a football, a condition known as venous stasis insufficiency, which made walking difficult and running impossible. Her doctors testified that the only way to minimize the swelling and resulting pain in the foot was to continually elevate the leg, not stand or sit for longer than 30 minutes, take diuretic medications, and wear medical compression stockings. They also testified that she would never be able to return to work because of her injury.
Her doctors—vascular surgeon, family medicine and internal medicine doctor, and chiropractor—also testified that she was at high risk for painful blood vessel disorders, including deep vein thrombosis, thrombophlebitis, cellulitis, and ulcers. The jury was able to view our client’s leg in open court.
After the wreck, the defendant died from causes unrelated to the accident, so the lawsuit was filed against the estate of the defendant. Our client’s medical bills were $8,702, and she was expected to suffer $382,000 in lost wages over the remainder of her expected work life.
All of these losses were vigorously disputed by the insurance company and by the defendant’s defense attorney. On the first day of trial, the defendants made an offer of $25,000. The defendant only had an $100,000 insurance policy, and since the defendant died without any additional assets, this is all of the available money that could be recovered from the case.
The jury returned a verdict for $604,620. Our client was ultimately able to recover all of the available liability insurance coverage, plus her trial costs.
$240,000 Settlement: Worker Injures Ankle and Suffers Serious Medical Condition
While stepping down from a truck, our client suffered a type of ankle fracture called a calcaneous avulsion fracture. His injuries required complicated surgery and aggressive physical therapy. The injury then triggered a complex regional pain syndrome. As a result of this serious medical condition, our client was unable to return to his job.
Our client’s treating doctor indicated that two out of three insectioniduals recovered from complex regional pain syndrome within five years. There was medical evidence suggesting that our client’s condition could resolve at any time, but there also was evidence suggesting that the condition might never resolve. We had to determine if our client’s injuries would improve and to what extent the damages were permanent.
Our client’s employer and the employer’s insurance company hired lawyers to defend the case. The case was handled through the North Carolina Industrial Commission, as are all workers’ compensation cases in the state. The settlement for our client was fully collectible.
Disclaimer: The cases on this page are illustrative of the matters handled by the firm and do not include all results achieved by the firm. The outcome of a particular case can’t be predicated by a lawyer’s or firm’s past results. Each case is different, and the value of a case can depend on a number of factors, such as: the facts concerning liability in the case, potential liability defenses in the case, economic and non-economic damages in the case, the legal complexity of the case, whether the defendant was insured or self insured, the available insurance coverage in the case, and whether the case was resolved through negotiation, at trial, or in arbitration.