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Hogan v. Washington Nursing Facility Limited Partnership

March 29, 2007

VIRGINIA HOGAN, APPELLANT,
v.
WASHINGTON NURSING FACILITY LIMITED PARTNERSHIP, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (CA7891-02) (Hon. Melvin R. Wright, Trial Judge).

The opinion of the court was delivered by: Fisher, Associate Judge

Argued February 28, 2007

Before RUIZ and FISHER, Associate Judges, and KING, Senior Judge.

Virginia Hogan sued on behalf of her mother, Elizabeth Conley, who fell and broke her hip while she was a patient at the Washington Nursing Facility ("WNF"). Although the jury found that WNF was negligent and that its negligence was the proximate cause of Ms. Conley's injury, it awarded $0 for pain and suffering. The trial court denied Ms. Hogan's motion for a new trial on the issue of damages, and she appealed. We reverse and remand.

I. The Factual and Procedural Background

When WNF admitted Elizabeth Conley on September 10, 1999, she was eighty-two years old and suffered from dementia. She also had bleeding ulcers on her legs and a history of severe abdominal obstructions. WNF recorded that she was in no pain at the time of admission.

On September 11, 1999, Ms. Conley had been agitated and confused, and had made outbursts of screaming and crying. That evening she was sitting in her wheelchair near the nurses' station but had unfastened her safety belt more than once. When Ms. Conley seemed to become calm, the nursing assistant who was her caretaker stepped away to care for another resident. Ms. Conley then unbuckled her safety belt and tried to stand up. Doing so, she fell and broke her hip. The caretaker testified that when she found Ms. Conley on the floor and put her into bed, she was crying in pain. The WNF nurses' log from that date also reports that Ms. Conley was in pain. The medical staff at WNF concluded that she needed to be hospitalized, but the ambulance did not come for almost three hours.

The ambulance took Ms. Conley to Hadley Hospital, where she underwent surgery to repair her fractured hip. The fracture was displaced, and a doctor implanted screws to hold the bone together so it would heal. Ms. Conley spent twelve days in the hospital, during which time she received pain medication and was in traction. She also suffered a recurrence of a fecal impaction and continued to endure the infected ulcers on her legs.Because of her dementia, Ms. Conley was not able to testify about her pain and suffering. Before the fall she was able to stand and to walk with assistance, but afterwards she could do neither.

At trial, WNF contended that it had not been negligent and that Ms. Hogan had not shown Ms. Conley's pain to be a result of the fractured hip as opposed to her other painful conditions. By special verdicts, the jury found that WNF was negligent and that its negligence was the proximate cause of Ms. Conley's hip fracture. Appellees have not challenged this finding of liability.

The jury awarded $21,573 (the exact amount of Ms. Conley's hospital bill) for medical expenses, but "zero dollars for non-economic damages." Ms. Hogan moved for a new trial on damages because the jury had not compensated her mother for pain and suffering. WNF contended in response that the jury reasonably could have concluded that $21,573 was adequate compensation or that Ms. Hogan had not carried her burden of proving pain and suffering by a preponderance of the evidence. The trial court agreed that the verdict was not contrary to reason and denied Ms. Hogan's motion for a new trial on the issue of damages.

II. Analysis

We review for abuse of discretion.

In reviewing the denial of a motion for a new trial based on a claimed inadequate verdict, this court will reverse only when the amount of the award evidences prejudice, passion or partiality on the part of the jury or where the verdict appears to be an oversight, mistake, or consideration of an improper element. An appellate court should order a new trial only when the award is contrary to all reason.

Barron v. District of Columbia, 494 A.2d 663, 665 (D.C. 1985) (internal quotations and citations omitted). See also Gritz v. Hot Shoppes, Inc., 117 A.2d 126, 127-28 (D.C. 1955). Under this standard, "the circumstances are necessarily rare when the trial court's decision upholding the jury ...


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