A Clark County Nursing Home Verdict Stands, and the Family's Other Claims Get a Second Look: Howard v. HCR ManorCare

Published April 17, 2018 · Ohio Court Decisions

Families who place a parent in a nursing home are trusting strangers with someone they love. When that trust is broken and the parent dies, families want two things: an honest accounting of what happened, and a fair result. A recent decision from the Second District Court of Appeals, which hears appeals from Clark, Montgomery, Greene, Miami, Darke, and Champaign Counties, shows how both can be pursued.

On March 23, 2018, the court decided Howard v. HCR ManorCare, Inc., 2018-Ohio-1053. It upheld a $1.1 million wrongful death verdict for the family of a man who died after a stay at a Springfield nursing home, and it revived the family's separate survival claims that the trial court had thrown out as untimely.

What happened

According to the court's opinion, Donald Lee Howard was 78 when he was admitted to Heartland of Springfield. He was a resident from December 2011 until his death in April 2012. The family's complaint alleged that failures in his care led to falls, pressure sores, weight loss, dehydration, infections, sepsis, and his death. His son sued, individually and on behalf of the wrongful death beneficiaries, against the nursing home and several related corporate entities.

On the first day of trial in April 2016, as the jury was being brought in, the defendants told the court they would admit liability for Mr. Howard's death. The jury heard evidence only on damages. According to the opinion, the jury returned a total verdict of $1,100,000 against the defendants.

What the court of appeals decided

The wrongful death verdict stands

The defendants appealed on several grounds, including a challenge to the affidavit filed with the complaint, objections to the jury forms and instructions, and a complaint about a remark in closing argument. The Second District rejected each of them.

The court's reasoning on the first point is worth noting. Having chosen to admit that their conduct caused Mr. Howard's death, the defendants could not later escape that admission by attacking a technical defect in the paperwork filed at the start of the case. The court held that the admission waived that challenge.

On damages, the court approved the trial court's instruction that the purpose of damages is to make the family whole, and that the mere difficulty of putting a number on a loss does not prevent an award. The jury was instructed on loss of society and mental anguish, two of the losses Ohio law recognizes for families under R.C. 2125.02(B). You can read more about what Ohio law allows families to recover.

The survival claims were wrongly dismissed

An Ohio death case often has two parts. The wrongful death claim compensates the family for its own losses. A separate survival claim, preserved by R.C. 2305.21, seeks compensation for the injuries and suffering the person experienced before death.

Here, the trial court had dismissed the survival claims, ruling that they were "medical claims" subject to a one-year statute of limitations under R.C. 2305.113 and filed too late. The Second District disagreed, at least at this stage of the case.

Relying on a Supreme Court of Ohio decision, the court explained that a claim is a "medical claim" only if it is brought against one of the medical providers listed in the statute and it arises out of medical diagnosis, care, or treatment. The defendants had admitted in their own pleadings that the corporate entities, other than the nursing home itself, were not licensed to operate the home. And the survival claims, as pleaded, focused on corporate decisions: understaffing, funding, failing to correct deficiencies, and failing to report neglect. Accepting the family's allegations as true, as the law requires at that stage, the court held that those claims could not be dismissed as untimely medical claims. The survival claims were sent back to the trial court for further proceedings.

Prejudgment interest

The family also sought prejudgment interest, arguing that the defendants had not made a good faith effort to settle. As the opinion describes the family's motion, the defendants' highest pretrial offer was less than 25 percent of what the jury awarded. The trial court denied interest and refused to delay the hearing so the family could conduct discovery. The Second District affirmed, noting the family did not raise discovery until the day before the scheduled hearing. The lesson for families is that every part of a case, including post-trial motions, has to be pursued promptly.

Why this matters for nursing home families

Corporate decisions can be the real cause. Many nursing homes are operated within a web of related companies. Decisions about staffing and budgets may be made far from the resident's bedside. This decision recognizes that claims about those decisions are not automatically "medical claims" with a one-year deadline.

The deadlines are different, and they are short. A wrongful death action generally must be filed within two years after the death under R.C. 2125.02(D)(1). But as this case shows, defendants will often argue that related claims are medical claims subject to a one-year limit. The safest course is to talk with a lawyer well before the first anniversary of the death, not after.

Records tell the story. Falls, pressure sores, weight loss, and dehydration leave a trail in care plans, charting, weight logs, incident reports, and staffing records. Families should request records early and keep notes of what they saw during visits. Our page on nursing home deaths explains what to look for.

Words of regret are not the same as accountability. In closing argument here, the defense spoke of apology and amends while asking the jury for a far smaller number. Our post on the Supreme Court's apology decision, Stewart v. Vivian, explains why an apology alone does not prove a case, and why the evidence matters so much.

Be careful what you say early on. Insurers for care facilities, like insurers in crash cases, may contact families soon after a death. Our post on recorded statements explains why it is wise to talk with a lawyer first.

The wrongful death claim is brought by the personal representative of the estate for the benefit of the surviving spouse, children, parents, and other next of kin, under R.C. 2125.02(A)(1). You can read more about how Ohio wrongful death law works.