Miller v. Levering Reg’l Health Care Ctr., LLC, 202 S.W.3d 614 (Mo. Ct. App. 2006)

The resident had a history of falling, was left unattended in a dining hall, and fell, hitting her head. Following the fall she was given a neurological assessment every four hours, but testimony at trial showed that the standard of care was every two hours. Further, she was not assessed at all between midnight and 5:15 the next morning when she was discovered unresponsive; she died soon after transport to the hospital. The jury awarded $10 on the wrongful death claim; $240,000 in aggravating circumstances damages and $150,000 on the lost chance of survival. Defendants filed a motion for JNOV, a new trial, and remittitur, all of which were denied. On appeal the facility argued it was error to allow aggravating circumstances damages; the court of appeals rejected that argument, finding there was clear and convincing evidence that the facility knew it was dangerously understaffed, failed to take any action, and thus knew or had reason to know there was a high probability that a patient would be deprived of crucial treatment. The court rejected Defendant’s argument that the damages were excessive; the award demonstrated a calm and reasoned approach by the jury. A mention of a deficiency was found to be non-prejudicial and mention of subsequent remedial measures was waived due to no request for further relief despite there being a motion in limine. Finally, the court rejected Defendants’ argument that JNOV should have been granted because the plaintiff did not establish the standard of care for monitoring the dining hall. The court found the absence of evidence on that issue was not dispositive because “the jury was required to find negligence if Levering was negligent for failing to supervise Birkhead, failing to monitor Birkhead, or failing to provide sufficient staff. Finally, there was ample evidence that, if Levering had more employees, the necessary neurological assessments would have been done.”