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Lawyers for the estate of an ailing 70-year-old nursing home resident said the jury’s award showed that even a terminally ill patient’s pain and suffering was not without value.

By Greg Land | April 29, 2019 at 01:54 PM

(Evan Jones (from left), Jonathan Marigliano, Michael Prieto and William)

A DeKalb County jury awarded $1.8 million to the estate of an ailing, elderly nursing home resident who died several weeks after hitting her head in a fall from bed as the linens were being changed.

The jury verdict covered the pain and suffering of Christine Mitchell, 70, but included no damage award on an accompanying wrongful death claim.

Attorneys for the woman’s son and executor said the verdict revealed that a jury could find value in the suffering of even terminally ill plaintiffs.

“One of the interesting things about this kind of case is how a jury would look at her. What is the pain and suffering worth for a woman dropped on her head who probably only had another six months to live?” said Evan Jones of Athens’ Blasingame, Burch, Garrard & Ashley.

“The jury answered that very important question: Their pain and suffering does matter,” said Jones, who tried the case with co-counsel Michael Prieto, William Holbert and Jonathan Marigliano of Prieto, Marigliano, Holbert & Prieto, an Atlanta firm.

Jones said his team made a $500,000 offer of settlement on the pain and suffering claim and a similar offer on wrongful death in September, both of which were declined.

Because of that, they will be filing for attorneys fees under Georgia’s Offer of Judgment statute, under which a party that declines a settlement offer then loses at trial by at least 25 percent more than the rejected offer may have to pay the opposing party’s fees from the date of the offer.

Jones said the defense’s last offer to settle the case was $500,000 just before it went to trial.

The nursing home defendants’ trial counsel was Hall Booth Smith partners Howard Reese III and H. Eric Hilton.

“This was a difficult case with admitted liability and we are sympathetic to the Mitchell family,” said Reese via email. “While plaintiffs sought a larger jury verdict than awarded, we are disappointed with the amount of the verdict and are considering our options for appeal at this time.”

According to Jones and court filings, 70-year-old plaintiff Christine Mitchell had been living at Grace Healthcare of Tucker for more than three years when the accident happened.

She suffered from multiple diseases, including several prior strokes that led to vascular dementia as well as hypertension, epilepsy and diabetes. She also experienced seizures and had fallen several times at the nursing home.

The defense portion of the pretrial order said that, a few weeks before her death, Mitchell had been taken to Emory St. Joseph’s Hospital because she was experiencing difficulty eating, where she was diagnosed with end stage dementia and would likely die within six months.

She was back at Grace Healthcare in September 2015 when a certified nursing assistant attempted to perform an occupied bed linen change, inadvertently rolling Mitchell off the bed. She landed face-down and hit her head, resulting in a cut and a large bruise on the right side of her forehead.

The CNA called for a nurse who applied pressure and an ice bag, and Mitchell was taken to DeKalb Medical Center, where she was diagnosed with a subdural hematoma.

Four days later she was taken to a hospice facility; she never regained the ability to communicate and died 32 days after the fall. Her death certificate said the cause of death was cardiopulmonary arrest, hypertension, cerebrovascular disease and chronic kidney disease.

In 2017 her son and executor, Keith Mitchell, sued Grace Healthcare and parent company Tucker Investments & Associates LLC in DeKalb County State Court, asserting multiple claims including wrongful death, general and professional negligence, violations of federal nursing home guidelines for facilities serving Medicare patients and violations of Georgia’s Bill of Rights for Residents of Long-Term Care Facilities, among others.

Trial began April 22 before Judge Janice Gordon.

Throughout the course of the litigation, Jones said the defendants never conceded negligence.

“They finally admitted negligence on the first day of trial for the first time,” he said.

The defense’s portion of the pretrial order contained a litany of Mitchell’s various afflictions, and Jones said her failing health was a large part of their strategy.

“Their defense was kind of ‘no harm, no foul. She was she was declining rapidly since May of 2015 for various ailments—thrombosis, heart problems, dementia,’ all of which was true,” he said.

“The defense was sort of like ‘I’m sorry we dropped her and she developed a subdural hematoma, but we didn’t cause her death.’”

Jones said key plaintiff’s experts included Macon geriatrician Harry Strothers III and Decatur Gerald Gowitt, along with Philadelphia nursing expert Stacy Donnelly.

The key defense expert was Sarasota geriatrician Bruce Robinson, he said.

During closing arguments, the plaintiffs did not suggest any dollar figure.

“We gave a range for pain and suffering and allowed them to fill in the blanks,” Jones said.

The defense said there should be no award for wrongful death and suggested $100,000 to $150,000 for Mitchell’s pain and suffering might be appropriate, he said.

On Thursday, the jury took about four hours to award $1.8 million, he said.

In conversation afterward, he said some jurors were “concerned that they first admitted liability at trial; they didn’t like that. Where they were unanimous was that for the 31 days this woman lived after being dropped on her head, the subdural hematoma caused her decline and her pain and suffering.”