Nursing Home Neglect Trials Just Changed: What Mandatory Bifurcation Means for Families

Published March 9, 2012 · Ohio Supreme Court

John Havel went into a nursing home in October 2008 to recover from hip surgery. He developed bedsores so severe they required surgery, contracted a blood infection, and died the following August. His family sued the facilities for negligence, wrongful death, and violations of Ohio's Nursing Home Patients' Bill of Rights, and asked for punitive damages. Before the case ever reached a jury, it went all the way to the Ohio Supreme Court on a question about how the trial would be run. The Court's answer, issued February 15, 2012, changes how every Ohio injury case involving punitive damages will be tried.

What the Court decided

The case is Havel v. Villa St. Joseph, 131 Ohio St.3d 235, 2012-Ohio-552. The nursing home asked the trial judge to split the trial into two stages under R.C. 2315.21(B): a first stage on whether the facility was negligent and what compensatory damages the family was owed, and a second stage, only if the family won the first, on punitive damages. The judge said no. The Eighth District Court of Appeals agreed with the judge, holding that the statute was unconstitutional because it took away the discretion that Civil Rule 42(B) gives judges over separate trials.

The Supreme Court reversed, by a vote of five to two. The majority held that R.C. 2315.21(B) creates a substantive right to a two-stage trial, which means the legislature had the power to enact it and the Court's own procedural rule has to yield. When any party in a jury-tried tort case asks for bifurcation, the judge must grant it. There is no discretion left.

Two justices dissented. Justice McGee Brown wrote that "bifurcation is a classic courtroom procedural issue" and that trial judges are in the best position to decide how a trial should run. That view lost. Mandatory bifurcation is the law in Ohio as of today.

What "bifurcation" actually looks like

Here is how a nursing-home neglect trial will now unfold when a defendant invokes the statute:

Stage one. The jury hears evidence on whether the facility was negligent, whether that negligence caused the resident's injury or death, and what compensatory damages are owed: medical expenses, funeral costs, the family's loss of the resident's companionship, and the resident's own pain and suffering. During this stage, the statute bars any evidence "that relates solely to" whether punitive damages should be awarded.

Stage two. If the jury finds for the family in stage one, the same jury then hears evidence on punitive damages and decides whether to award them and how much.

Punitive damages, explained simply, are money awarded to punish a defendant and deter others, on top of the money that compensates the family. Under R.C. 2315.21, they require proof by clear and convincing evidence that the defendant acted with malice, which in a neglect case usually means a conscious disregard for the resident's safety that had a great probability of causing substantial harm. They are generally capped at two times the compensatory award.

Why the legislature wanted this, and what it costs families

The majority relied heavily on the General Assembly's stated reasons for the 2005 tort-reform law that created the rule. The legislature said it believed juries were inflating pain-and-suffering awards because they were hearing evidence of wrongdoing at the same time they decided compensation, and that defendants "should have the right to request bifurcation" to keep that evidence out of the first stage.

Translate that into a nursing-home case and you can see the cost. The strongest evidence in these cases is often the pattern: chronic understaffing, ignored care plans, falsified charting, prior citations, corporate budget decisions that put profit over residents. Much of that evidence is also what shows malice. The new rule is designed to delay the jury's exposure to it until after the compensatory verdict is in.

This decision follows the same tort-reform package that produced Ohio's caps on pain-and-suffering damages, and it has the same purpose: to make the defendant's worst conduct matter less to the dollar figure the jury writes down.

How experienced trial counsel works within the rule

I want to be direct about this: Havel is not good news for families. But it is a rule that a prepared lawyer can work within, and the statute's own language leaves more room than defendants would like.

• The word "solely" matters. The statute excludes only evidence that relates solely to punitive damages. Evidence of understaffing, ignored call lights, missed repositioning, and unanswered complaints is evidence of negligence and causation. It does not become off-limits in stage one just because it also shows a disregard for safety. The compensatory case can still tell the full story of what happened to the resident.
• The compensatory case must be built to stand alone. Before Havel, some lawyers leaned on the shock value of corporate misconduct to carry a verdict. That approach is gone. The first stage has to be built on medical proof, nursing-standard testimony, the chart, and the human loss to the family.
• The second stage is a second chance to be heard. If the jury has already found the facility negligent and awarded damages, it then hears the evidence of malice from a position of having already decided the family was wronged. Handled well, that sequence can be powerful.
• The Patients' Bill of Rights remains a separate claim. R.C. 3721.13 gives nursing-home residents enforceable rights to adequate and appropriate care. Those claims proceed alongside the negligence and wrongful-death claims.

Compare the $10 million bad-faith verdict I wrote about last month, where a jury awarded $8 million in compensatory damages and $2 million in punitive damages against an insurer that abandoned its driver. You can read that post on the Belmont County bad-faith verdict. Large compensatory awards do not depend on punitive evidence. They depend on proving the harm.

What this means for you

If you suspect a parent or spouse has been neglected in a nursing home or rehabilitation facility:

• Act on the medical signs now. Pressure sores, unexplained weight loss, dehydration, falls, infections, and medication errors are the hallmarks of neglect. Photograph wounds, request the chart, and get the resident to a hospital if the facility is not responding.
• Keep your own log. Dates of visits, who you spoke with, what you were told, and what you saw. Staff turnover in these facilities is high, and your notes may be the only consistent record.
• Understand that the facility will demand a two-stage trial. That is now its right. It is not a reason to settle for less. It is a reason to hire a lawyer who knows how to prove the full case in stage one.
• Wrongful-death and survival claims carry deadlines. Call early so records can be secured before they are "lost."

Our office handles nursing-home neglect and wrongful-death claims as part of our personal injury practice throughout Montgomery, Greene, Warren, and Miami Counties.