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She had Alzheimer’s disease, diminished circulation, diabetes, anemia, a history of strokes and a prior heart attack. But what really worried Filomena Rivera Rodriguez’s family were her bedsores. In a middle Georgia nursing home, the bedridden grandmother’s heel had developed a gaping sore where the skin near the heel bone had grown so thin it was disintegrating with gangrene. The 92-year-old matriarch, a Puerto Rican native, mother of seven and Medicaid recipient, had her leg amputated at the knee because of the gangrene. Four months later, she died. The amputation resulted in a $5 million punitive damages verdict last week in Muscogee County Superior Court in Columbus against Marion Memorial Nursing Home in Buena Vista. Pagan v. CHRS Long Term and Home Care Inc. No. SU-01CV1082 (Musc. Sup. Ct. June 4, 2004). The negligence verdict might have devastated Columbus Regional Healthcare System, which operates the nursing home. Instead, the medical provider may be liable only for $250,000 of the punitive damages, plus $362,500 in compensatory damages. The verdict is likely to be reduced because of a state law that limits punitives to $250,000 if a jury finds the defendant had no specific intent to harm. That law, O.C.G.A. �5-12-5.1, says that punitive damages “shall be limited to a maximum of $250,000″ if the cause of the action does not arise from a defendant who “acted, or failed to act, with the specific intent to cause harm.” The plaintiffs lawyer said the case is an example of tort reform gone awry, while the defense attorney said the damages cap will preserve the hospital system’s ability to offer care to the community. “I think this is an example of the flawed reasoning behind the tort reform movement,” said Benjamin A. Land, the family’s attorney. “We’ve had a jury of 12 people � sit and listen to evidence for two weeks and conclude this health care company should be punished � only to potentially have the Legislature, through the punitive damage statute, take that punishment away,” said Land, of Buchanan & Land in Columbus. His co-counsel was Jerry A. Buchanan. Land said he’s considering asking Senior Judge Levis A. McConnell Jr., who presided over the trial, not to apply the cap. And Land said he’s looking into whether the cap unconstitutionally interferes with the right to trial by jury. “The jury awarded a sum of money, and the Legislature shouldn’t interfere with the jury’s decision,” he said. He said the law has been upheld on other appeals, but he believes it’s time to revisit it. A DEVASTATING FINANCIAL BLOW On the other side, W. Scott Barber, attorney for the nursing home and Columbus Regional, said the law capping punitives may save the hospital system — and the community — from a devastating financial blow. The nonprofit hospital system’s insurance deductible is in the millions of dollars, he said, and the verdict would undermine its ability to provide care. “I argued during the punitive damages phase of the trial that we are a nonprofit corporation, and the money we have has to be used for community-based projects,” said Barber, of Tisinger, Tisinger, Vance & Greer in Columbus. “If you take money from Columbus Regional, what you’re taking money from — who’s being punished — is the community.” Barber added: “I was disappointed [in the verdict]. I don’t know if [the jurors] thought insurance would pay for this verdict, or if they wanted the community to pay for this.” Columbus Regional provides the only neonatal, level two trauma and children’s cancer centers in the region, he said. The system operates three nursing homes and several clinics and pharmacies. It has more than 400 hospital beds, according to its Web site. Though it is nonprofit, the company is not owned by the local government. Barber wouldn’t comment on the case in the context of tort reform, explaining that it might affect an appeal. But he said he’ll ask the judge to follow the law that restricts punitives. “I am going to prepare a judgment. I contend the punitives are $250,000 and the total judgment is $612,500. My position is that is what the current state of the law is.” Still, Barber conceded that the nursing home could have performed better in the care of Rodriguez. “We were not perfect in our care and treatment of her,” he said. “Mistakes were made, and I think that’s true. But our position is that we did not act with a specific intent to do harm.” He added that Rodriguez had been in the nursing home for 17 months before the sore appeared. She was mostly bedridden during that time, though she sometimes sat in a wheelchair, he said. “So the big deal about that to me was that she was in our facility for a year and a half before she developed skin breakdown problems,” he said. He added that the facility was able to heal other sores, but due to poor circulation on the heel, that sore never healed despite repeated treatment. He acknowledged that Rodriguez would wince or express pain when the wound was being treated. But at trial he argued that due to her underlying condition, the wound was unavoidable. FACILITY HAD PREVIOUS CITATION The family’s attorney disagreed. Land argued that the nursing home missed opportunities to protect the skin with a boot that cost $300, and that signs of the sores were hidden from Rodriguez’s family. “Bed sores are caused by pressure to a bony prominence such as a heel,” said Land. “If the pressure isn’t relieved, and a person isn’t well-nourished, then the skin will break down,” he explained. “She couldn’t turn herself. She needed help. Our position is that they didn’t provide proper pressure relief or nutrition,” he said. During the trial, Land also brought up a citation from a state board in 1998 against the nursing home for skin care problems. That was the year before Rodriguez’s problems began in 1999. He said the home brought in skin care nurses for a short time but then abolished the extra care. Once those nurses left, Rodriguez’s problems began, he said. Columbus Regional’s attorney countered that Rodriguez’s doctor never requested the boot, even though the doctor was constantly monitoring her treatment and had received a wound expert’s recommendation for the boot. The doctor, who is not affiliated with the nursing home, was not a defendant in the suit. The family’s attorney argued it was up to the nursing home — not the doctor — to be in charge of Rodriguez’s care. But Barber said annual nursing home inspections since 1999 have been clear of skin care citations. He said the home has taken steps to improve skin care, as shown by the inspection results. Nonetheless, Barber said his client heard the jury’s message, and it will have an impact, even if the punitive damages are capped at $250,000. “I think the folks at Columbus Regional heard what this jury had to say, and they take it very seriously. It meant a lot to them what folks in this community said and thought,” said Barber. The medical provider is “looking at things differently” now, he said, “because a jury came out and said it has to pay $5 million.”

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