CG&P Partners Dom Gallardo and Michele Levin successfully defended a New York City nursing home in New York County Supreme Court during a 4-week trial involving nearly ten thousand pages of bates stamped medical records and the testimony of eleven witnesses. The case involved complex Nursing Home statutory violations with an underpinning of allegations that the decedent nursing home resident was over medicated with a powerful antipsychotic resulting in falls, extrapyramidal symptoms, and death. The decedent resident’s treating physician and psychiatrist, who were sued in medical malpractice, settled with the plaintiff immediately before jury selection. CG&P continued the defense of the nursing home to verdict.
The jury was charged by the judge with multiple violations of residents’ rights under New York Public Health Law § 2801-d. The regulations that were read to the jury by the court required jurors to consider violations that implicated elder abuse, use of chemical restraints, unnecessary drug administration, deficient staffing levels, failure to obtain consent before medicating the resident, and inadequate fall prevention measures. The plaintiff’s counsel asked the jury to return a verdict of $20 million in damages.
The jury deliberated for four days, and at one point sent out a note indicating that the jurors were hopelessly deadlocked. The court read the jury an “Allen” charge in accordance with New York law, urging the jurors to continue deliberating to avoid a second trial. The jury shortly thereafter returned a verdict finding the nursing home liable, awarding only approximately 1% of the amount asked for by the plaintiff, which was far less than the resident’s treating physician and psychiatrist had already paid to settle the claims against them. Under New York law, the doctors’ settlement acted as complete set off to the jury’s verdict, and the nursing home had to pay nothing.
Following the verdict, the jurors indicated that they were dead locked 4 jurors to 2, with 4 jurors insisting that the nursing home was not liable. Ultimately, upon hearing the “Allen” charge, the 4 jurors in favor of the nursing home decided to compromise with the 2 hold out jurors, and agreed to find the nursing home liable as long as the monetary award was minimal. This resulted in a verdict in which the plaintiff received no compensation from the nursing home because the doctors’ settlement acted a complete set off to the recovery.
In order to avoid further litigation and appeals, the matter was ultimately resolved with a very favorable settlement for the nursing home.