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Barred by a federal judge from presenting its defense to the jury, the former owner of a Fort Worth, Texas, nursing home accused of the neglect of an elderly woman has been hit with a $312.8 million damage award. “I think it’s definitely the largest verdict [against a nursing home] in Texas,” says Fort Worth lawyer H. Dustin “Dusty” Fillmore III, who represents the plaintiff in Cecil Fuqua as Executor for the Estate of Wyvonne Fuqua, Deceased v. Horizon/CMS Healthcare Corp. The jury returned the verdict — more than $2.7 million in actual damages and $310 million in punitive damages — on Feb. 9 after a five day trial before U.S. District Judge Terry Means in Fort Worth. Means entered a final judgment reflecting the jury’s verdict on Feb. 14. At issue was the alleged neglect of a patient at Heritage Western Hills nursing home, which previously was owned by Horizon. Wyvonne Fuqua had lived at Heritage Western Hills from Nov. 25, 1994, until April 25, 1997, when the nursing home got the family’s permission to move her to Fort Worth Osteopathic Medical Center, says Fillmore, a shareholder in the Fillmore Law Firm. “She was malnourished. She was covered with pressure sores,” Fillmore alleges. “The family was told she had two pressure sores, which were consistently described as ‘minor and improving.’” Fillmore, who represents Fuqua’s estate with his brother, Charles W. “Chad” Fillmore, and Andy Beach, another member of the firm, alleges that Fuqua had 16 pressure sores, including five that were so severe they went to the bone. Court records indicate that Fuqua also suffered from stiffening of the joints, dehydration and other ailments. Fuqua was unable to tell her three children about the pressure sores because she was suffering from a type of dementia, Dusty Fillmore says. The woman died on June 28, 1997, at the age of 76. Horizon argued in its pleadings that the company was not negligent and said that not all pressure sores are preventable. Fillmore says Fuqua’s family members trusted the nursing home staff to tell them about their mother’s health problems but were not informed about the severity of the bedsores. Court records indicate that the Texas Department of Human Services had cited Horizon twice in reference to its care of Fuqua, but the family was not notified about the agency’s findings. That’s the reason fraud was alleged by the plaintiff, Fillmore says. Dallas lawyer Brent Cooper, who represents Horizon, says the TDHS survey that mentioned Fuqua was done in March 1997. The jury didn’t get to see a second survey done in April 1997 that showed the nursing home was meeting state requirements, he says. “We had no pleadings. We could not call witnesses. We could not put on evidence. Unfortunately, the jury was not able to get the complete truth,” says Cooper, a partner in Cooper & Scully. Horizon’s lawyers were allowed only to cross-examine the witnesses put on by the plaintiff. In his instructions to the jury, Means said he found that Horizon “committed fraud and was negligent and grossly negligent” in its care of Fuqua and is liable to her estate. The only task left for the jury was to decide how much money Horizon should pay in damages. Cooper says the corporation will ask for a new trial. If the trial court won’t reconsider the case, Horizon will appeal to the 5th U.S. Circuit Court of Appeals, he says. LAST RESORT Means struck Horizon’s pleadings last October after finding that the company had delayed the plaintiff’s request for documents. On two separate occasions, U.S. Magistrate Judge Charles Bleil of Fort Worth fined the corporation, for a combined total of $24,650, because Horizon failed to meet court-set deadlines for turning over documents. Bleil had ordered Horizon to provide full and complete responses to the plaintiff’s requests, Means’ order said. David Crump, a professor at the University of Houston Law Center, says the so-called “death penalty” sanction can be imposed if a party in a suit has engaged in misconduct. “It’s supposed to be a last resort,” Crump says. In his Oct. 24, 2000, order, Means said that litigation-ending sanctions against Horizon were necessary because the corporation “has consistently attempted to thwart plaintiffs’ efforts to obtain discovery at almost every turn.” According to the order, Horizon repeatedly waited until the last possible moment to respond to discovery requests and then raised numerous objections to the requests and/or filed motions seeking protection from the court. Most of the motions were denied, Means said in his order. Most indicative of Horizon’s “bad faith,” Means wrote, is the fact that despite repeated assurances it didn’t have documents responsive to plaintiff’s requests or had produced the information sought, the corporation disclosed last summer that it had “15,000-plus boxes” of documents that had not been reviewed by its lawyers. Randall Mink, a Horizon representative, testified in a deposition that the company had had access to the 15,000-plus boxes since 1997, the judge said in the order. “If this doesn’t get you a pleadings strike, what does?” asks Fillmore, who alleges that the corporation had “secreted” the documents to keep damaging information out of the plaintiff’s hands. “I disagree there was bad faith,” Cooper says. “I believe the court was incorrect.” Cooper & Scully wasn’t hired to represent Horizon until last summer. “My opinion is based upon the record, which we reviewed,” he says. Means did not fault the corporation’s previous lawyers and said in the order that “Horizon is responsible for its misconduct.” Crump, who specializes in civil litigation, says lawyers possibly can avoid such situations by having a meeting with their clients at the beginning and saying: “We will not tolerate any losing of documents.” Clients don’t always understand that they have to turn over documents in the discovery process, he says. FRAGILE SYSTEM This is the second multimillion-dollar judgment against Horizon in four years. In both cases, patient neglect was alleged at Heritage Western Hills. In 1997, a Fort Worth jury awarded more than $92 million in damages in Horizon/CMS Healthcare Corp. v. Lexa Auld, Administratrix of the Estate of Martha Hary, Deceased. Hary alleged in a suit that the substandard care she received at the Fort Worth nursing home caused her to develop pressure sores that were not properly treated. She died several months after filing the suit, which was continued by Auld. The trial judge reduced the damages to $11 million, and the 2nd Court of Appeals in Fort Worth upheld the judgment. Horizon appealed, and the Texas Supreme Court upheld the award on Aug. 24, 2000, ruling that the punitive damages were not subject to the caps set by the Medical Liability and Insurance Act of 1977. “They paid us to the penny what the Supreme Court said they owed, nearly $15 million,” says Fillmore, who represented Auld in the case. Fillmore says it’s important for the Fuqua verdict to be upheld as well. “If nursing homes know they can always count on someone swimming out to save them, they won’t clean up their act,” he says. Tim Graves, president of the Texas Health Care Association that includes nursing homes among its members, says verdicts like this “send a huge shock wave” through the industry. “It really rattles a rather fragile infrastructure that we have now,” he says. Graves says about 25 percent of the nursing homes in Texas are in bankruptcy. Those still in business have a difficult time finding and affording liability insurance, he says, noting that coverage, when it’s available, has jumped from about $250 to between $2,500 and $5,000 per bed. Horizon became a wholly owned subsidiary of HealthSouth Corp. in October 1997 and no longer operates any nursing homes, court records show.

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