D.C. Court: Jury forgot about pain and suffering

John O'Brien Apr. 3, 2007, 1:00pm

WASHINGTON, D.C. - A woman who sued a nursing facility on behalf of her mother will receive a new damages trial that will earn her pain-and-suffering money, the Washington D.C. Court of Appeals recently decided.

Virginia Hogan sued Washington Nursing Facility Limited Partnership on behalf of her mother Elizabeth Conley, who was 82 years old when she fell and broke her hip there in 1999.

A jury found WNF negligent for $21,573, the exact amount of Conley's medical bills. It did not award any money for pain and suffering, however.

In order for a new damages trial to be ordered, the Court had to determine the previous award made no sense.

"The conclusion that Ms. Conley suffered pain comports with common experience," Justice John Fisher wrote. "A broken hip, the corrective surgery, and the resulting immobilization would naturally cause some pain and suffering, so we need not summarize the evidence further.

"There is no reason to think that the jury acted from passion or prejudice, or that it considered an improper element, but its denial of any non-economic damages whatsoever is contrary to common sense and to reason."

Conley suffered from dementia, bleeding ulcers on her legs and abdominal obstructions when she tried to stand up out of her wheelchair in 1999, after a caretaker had momentarily left her alone.

She subsequently fell, broke her hip and had to wait three hours for an ambulance. The nursing staff at WNF reported that Conley was in pain.

She had surgery and spent 12 days in the hospital, where she was in traction and also suffered a fecal impaction. Because of her dementia, Conley could not testify about her pain and suffering.

Before the fall, she was able to stand and walk without assistance. Afterwards, though, she was not. WNF claimed it could not be proven that any pain was caused by the broken hip and not her pre-existing conditions.

"We do not overlook the fact that the plaintiff still had the burden to prove damages with reasonable certainty and that her presentation of evidence about the stay in the hospital was less than thorough," wrote Fisher, who was joined by Justice Virginia Ruiz and Senior Justice Warren King.

"Nevertheless, on this record, and under our case law, no reasonable jury could have failed to award at least some damages for pain and suffering."

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