$15-million is awarded in nursing home case

Published March 23, 1999|Updated Sept. 29, 2005

The verdict in the death of a man who died of emaciation at a Tampa center may be Florida's largest for nursing home negligence.

In what appears to be Florida's largest-ever negligence verdict against a nursing home, a state court jury awarded $15.2-million Monday to the estate of a man who died of emaciation in 1994 at the former Brian Center Health & Rehabilitation in Tampa.

John Lee Butler, 65, had been a resident there for five years after a brain injury left him unable to care for himself. Although Butler's mother had said she was satisfied with his early treatment, jurors heard testimony that Butler's medical records were poorly kept and that Butler developed bed sores and was allowed to lie in his own waste.

After a monthlong trial and a full day of deliberations Friday, the jury awarded $15-million in compensatory damages for the pain and suffering Butler suffered as a result of the home's negligence. The jury declined to award punitive damages.

According to the Florida Jury Verdict Reporter, Monday's verdict is more than double the state's largest award to date: the $6.34-million awarded last year by a Palm Beach jury. That case involved a 68-year-old man suffering from dementia who wandered away from his rehabilitation center one night and drowned in a nearby pond.

The foreman of the Tampa jury, computer analyst Michael Madison, 44, said afterward that he wanted to send a message to nursing homes that "you're not dealing with goldfish you can flush away when they are dead."

Outside the courthouse, John Butler's mother, Emma Louise Butler, 85, wanted Brian Center to know that "you didn't take care of my son like you promised."

After John Butler served in the Korean War, he returned to the United States and worked as a barber. He was beaten during a robbery and suffered severe brain damage. If she could, Butler said, she would tell her son, "Baby, your mama made it."

One of Butler's attorneys, Bennie Lazzara Jr. of Tampa, said he was "overjoyed" with the verdict, and added, "It's well worth the work, when you fight on behalf of a lady like that."

One of the Brian Center's attorneys, Kirsten Ullman of Tampa, said, "I don't think there is a basis for this verdict" and said she expected her client to appeal.

The primary point contested by defense attorneys was the $15-million compensatory damages award, three times more than the top of the range suggested by Butler's attorneys.

After the verdict was announced, defense attorneys asked Hillsborough Circuit Judge Robert H. Bonanno to allow them to investigate the jury's deliberations as a way to challenge the $15-million figure.

Bonanno refused, saying, "If you believe the witnesses, this man had a terrible stay . . . sitting in his own urine and feces for hours and hours."

In interviews, two jurors said they arrived at their verdict after starting with very different views of Brian Center's responsibility.

Madison, the foreman, said he had wanted to impose punitive damages of $250-million and compensatory damages of $22-million. Madison said his biggest concern was Brian Center's lack of reliable record keeping for patient care. He said he didn't think John Butler was the only patient to have suffered there. The jury's initial vote was 4-2 in favor of Butler, Madison said.

One of the jurors who said she was initially less inclined to punish Brian Center was Beverly Hurst, a 62-year-old retired music teacher and librarian.

"What made me decide was the death certificate," Hurst said. "The first line said emaciation."

The final verdict, the two jurors said, resulted from discussion by all six jurors. Besides the $15-million award, the jury also awarded $120,000 for violation of Butler's rights as a Florida nursing home resident, and $87,000 for medical expenses.

Defense attorneys will not have it easy trying to revise the jury's conclusion, said Clearwater lawyer Morris Silberman, a member of the Florida Bar's Board of Governors who is liaison to the Bar's appellate practice section.

"Juror deliberations are highly protected, and there has to be a strong showing that there is reason to go into that," Silberman said.

"The mere fact a verdict might be large or small isn't grounds by itself," Silberman said. "The judge can look at the big picture and decide. Many judges are very conservative about interfering with jury room discussions."

The Tampa firm that represented Butler, Wilkes & McHugh, has received nationwide attention for its aggressive, successful suits against nursing homes for negligence and violation of patient rights. The firm is seeking class-action status for a lawsuit it has pending against Brian Center in federal court in Tampa. It has several other lawsuits pending against Brian Center as well.

Last year, according to USA Today, Wilkes & McHugh won $35-million in nursing home settlements. According to the Florida Jury Verdict Reporter, Wilkes also holds the third- and fourth-highest nursing home verdicts in Florida: $2.73-million in Marion County in 1996 and $2.72-million in a 1993 Brooksville case.

An appellate court and the Florida Supreme Court let the Brooksville verdict stand. In that award, $2-million was for punitive damages, and $700,000 was for pain and suffering.

Besides the Brian Center, other corporate defendants in the lawsuit are LCA Operational Holding Co., formerly known as Living Centers Holding Co., and Brian Center Management Corp.

The former Brian Center facility at 1818 E Fletcher Ave. now has different management and is known as Delta Health Care Center of Tampa. Delta was not a defendant in the Butler lawsuit.

_ Times researcher John Martin contributed to this report.