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Evidence supported punitives for understaffing

In three wrongful death suits in which the jury found liability and awarded punitive damages, the district court erred in finding that the plaintiffs failed to show an “aggravating factor” under North Carolina law that would support punitives. Extensive trial testimony showed that the Defendants willfully and wantonly disregarded legal staffing requirements for nursing facilities so that they could increase profits.

Background

The Defendants operated a long-term skilled nursing facility known as Blue Ridge Health Care Center, with a special facility for ventilator-dependent patients. Although North Carolina requires “vent units” to provide 5.5 hours of nursing care per patient per day and to have at least one registered nurse at all times, the Defendants consistently failed to meet this requirement and did not staff a registered nurse for the third shift.

The estates of three ventilator-dependent patients claim the inadequate staffing and supplies about which Blue Ridge had been repeatedly warned proximately caused their deaths. Del Ray Baird had an anoxic brain injury early one morning and was found with his ventilator and alarms turned off. Bettie Mae Kee was found dead in the vent unit with her breathing apparatus pulled from her neck and no alarm or oxygen monitor in use. The standard of care required a sitter for Ms. Kee, but no sitter was provided because of understaffing. Elizabeth Jones died in the vent unit when staff members were unable to replace her tracheostomy tube in a timely manner. The delay was caused by a lack of proper bedside supplies, due to budget cuts.

A jury returned verdicts for the Plaintiffs, awarding compensatory damages of $50,000 for Baird, $300,000 for Jones, and $300,000 for Kee. The jury also awarded punitive damages of $1,523,939 for each Plaintiff. But the district court granted judgment as a matter of law to the Defendant as to punitive damages, on grounds that the Plaintiffs failed to produce evidence of an aggravating factor necessary to support punitives under North Carolina law. The Plaintiffs have appealed.

Punitive damages supported

North Carolina law allows punitive damages only if a claimant proves that the defendant is liable for compensatory damages and that fraud, malice, or willful or wanton conduct was present and related to the injury for which compensatory damages were awarded.

The district court erred in finding that the Plaintiffs failed to show the Defendants’ officers, directors, or managers participated in or condoned the asserted willful or wanton conduct. Evidence was that the Defendants’ manager B. McGovern had said that there was a “new sheriff in town” and he was going to do whatever he needed to do to cut costs. He made “a lot of policy changes” designed to drastically cut back on staff. McGovern was a person participating in the conduct constituting an aggravating factor and was the chief administrator of Blue Ridge.

Further, extensive trial testimony that the Defendants’ policy was to cut staffing to save money clearly and convincingly shows that – contrary to the district court’s finding – staffing was cut because of company policy. And in any event, punitive damages may be awarded if a manager condones conduct constituting an aggravating factor. Here, there was clear and convincing evidence that the Defendants were fully aware of the dangerously inadequate staffing levels yet did nothing or worse.

The district court also erred in finding that, in any event, the Plaintiffs failed to show the requisite state of mind to establish any aggravating factor. Trial evidence clearly and convincingly showed that the Defendants engaged in willful or wanton conduct by intentionally failing to follow federal and state laws on staffing, intentionally violating Blue Ridge’s policy regarding sitters for agitated patients, intentionally failing to monitor oxygen levels or provide continuous monitoring of alarms, and intentionally failing to have necessary bedside supplies in the vent unit.

Cuts to staffing and supplies were a deliberate corporate policy enacted to increase profits by millions of dollars. The Defendants were repeatedly informed that those cuts placed patients at risk of death or serious injury — patients whose lives were entirely dependent upon Blue Ridge’s diligence in providing care — yet they continued to profit by endangering their patients.

The district court held this evidence insufficient because the Plaintiffs failed to show “malicious intent” or a “wicked purpose,” but willful or wanton conduct does not require proof of malicious intent. It requires only proof of the conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage or other harm.

Here, Defendants deliberately failed to discharge their duty to provide adequate staff and supplies for their nursing facility. The Defendants knew that this failure was reasonably likely to result in patient injury or death. They nonetheless deliberately continued to disregard their legal duties in order to increase profits – precisely the type of egregious conduct punitive damages are meant to deter.

North Carolina limits punitive damages to the greater of three times compensatory damages or $250,000. Thus, on remand, the district court is instructed to enter judgment reducing the award of punitive damages to $250,000 for Baird’s estate, $900,000 to Jones’s estate, and $900,000 to Kee’s estate.

Affirmed in part, reversed in part, and remanded with instructions.

Vandevender v. Blue Ridge of Raleigh LLC, Case No. 17-1900, Aug. 27, 2018. 4th Cir. (Gergel), from EDNC at Raleigh (Boyle). Rachel Alexis Fuerst for Appellants/Cross-Appellees; Gregory Wenzl Brown for Appellees/Cross-Appellants. VLW No. 018-2-180, 16 pp.

VLW 018-2-180