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CASE TYPE: Nursing home malpractice, gross negligence, fraud CASE: Fuqua v. Horizon/CMS Healthcare Corp. fka Horizon Healthcare Corp., No. 4:98-CV-1087Y (N.D. Texas) PLAINTIFF’S ATTORNEYS: H. Dustin Fillmore III, T. Andrew Beach and Charles W. Fillmore of Fort Worth, Texas’ The Fillmore Law Firm DEFENSE ATTORNEYS: Cynthia Shea Goosen, R. Brent Cooper and Diana L. Faust of Dallas’ Cooper & Scully JURY VERDICT: $312.71 million; settled for $20 million When this trial opened in Fort Worth, Texas, the court had already entered judgment on liability against the defendant nursing home, preventing it from presenting any witnesses or documentary evidence. But the plaintiff’s attorneys determined, nevertheless, to try the case as if liability had not been established, in order to maximize the damages awarded by the jury, said plaintiffs’ attorney Charles W. “Chad” Fillmore. The strategy evidently worked, for it led to the largest verdict of the year against a nursing home. The suit was filed after the death of Wyvonne Fuqua in 1997. Fuqua had been admitted to the Heritage Western Hills Nursing Home in Fort Worth in November 1994 after a stroke. She also had anemia, dementia and recurrent urinary tract infections, said plaintiff’s counsel H. Dustin Fillmore III. As a result of her physical problems, the nursing home staff were required to turn and reposition her in bed to prevent pressure sores, or bed sores, Fillmore said. She also required range-of-motion exercises, he said. But, he charged, the nursing home staff did not meet these requirements and, in addition, “did not adequately feed her.” In late 1996, Fuqua began developing severe pressure sores, Dustin Fillmore said. As her condition deteriorated, he said, the nursing home staff “did not apprise the family of the mother’s condition and did not discharge her to a facility that could care for her.” Fuqua’s children, he said, “were told only of two pressure sores and that these were minor and improving.” In April 1997, Fuqua was discharged to a hospital emergency room. At that time, Fillmore said, the family learned that Fuqua had developed 16 pressure sores. “Nine of these were stage III sores, where the skin has rotted away to the fat and muscle, and five of the sores were state IV, where the skin has rotted away, exposing ligaments, joints and bone,” said Fillmore. Two months after leaving the nursing home, Fuqua died. Her son Cecil Fuqua sued Heritage’s owner Horizon Healthcare Corp., now known as Horizon/CMS Healthcare Corp., charging negligence, gross negligence, malice, fraud and felony violations of the Texas penal code that prohibits injuries to the elderly. While the plaintiff believed Fuqua died as a result of treatment at the nursing home, the plaintiff did not seek recovery for wrongful death, said Chad Fillmore. “We wanted to focus on the patient and suffering she endured,” not on the loss to her children. Prior to trial, Horizon had been sanctioned twice for discovery abuse and, in October 2000, “after Horizon was caught hiding 15,000 boxes of records from us,” said Dustin Fillmore, the court struck Horizon’s defenses. The jury would determine only the amount of damages. “There’s a tendency for many lawyers to believe that once the defendant’s pleadings are struck that it’s a walk in the park for the plaintiffs,” Chad Fillmore said. “That is not the case.” Both before and after the pleadings were struck, the Fillmore firm conducted full mock trials, with staff members acting as witnesses. From them, he said, “we learned that the jury had to understand that the defendant was in fact liable.” Even if a defendant admits liability, he said, “the focus always has to be on the defendant and what they did.” As a result, he said, “we put on proof establishing every allegation. It was sort of a belt and suspenders strategy.” For example, in the final pleading, the plaintiff had alleged that the defendant’s conduct was criminal. In Texas, Fillmore said, “it’s a crime to knowingly cause injury to an elderly individual.” The court’s decision striking Horizon’s response “had established that there had been a felony injury to the elderly. Under law, all our allegations had to be taken as true.” But the plaintiff’s team presented substantial evidence to support this position. “We said that Horizon had deliberately understaffed its homes and that it profited from the injuries it inflicted,” Fillmore said. Horizon had multiple subsidiaries, he said, including laboratories, pharmacies and rehabilitation entities, all providing additional care to residents of Horizon homes. The attorneys brought on excerpts from internal memos and the company manual, pointing out that there would be no Medicaid reimbursement for Stage I pressure sores, but that there would be reimbursement for sores at worse stages. It was in the home’s interest, the plaintiff charged, to allow a sore to progress to Stage III or Stage IV. To support this allegation, Fillmore said, the attorneys brought into evidence a Horizon/CMS Healthcare Corp. operations guide that advised its personnel, “It is in our interest to have residents at the higher levels of care if appropriate payment levels are applicable.” On Feb. 9, 2001, a Fort Worth jury awarded the plaintiff $312.71 million, including $310 million in punitives. There was no cap on these punitives, because of the finding of a violation of the Texas penal code. The defense filed post-trial motions to set aside the verdict, but these were never decided. Instead, the case settled in June for $20 million in cash. “Ten million is covered by insurance and $10 million is coming out of Horizon’s pocket,” said Chad Fillmore. “They’re now suing each other over coverage.”

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