In the Courts: Cap Not Asserted as Affirmative Defense; $1.2M Compensatory Damages Award Stands

December 1, 2017 | Aging Services Risk Management


​In a lawsuit alleging the abuse of a resident against a nursing home and its operators, the U.S. Court of Appeals for the 10th Circuit has affirmed the judgment of the district court, which had declined the defendants' motion to reduce the allegedly excessive compensatory damages award of $1.2 million or, alternatively, grant a new trial. Although the compensatory damages award exceeded the state cap of $350,000, the appeals court found that the defendants failed to assert the cap as an affirmative defense.

The resident was 90 years old when she moved into the nursing home. She had severe arthritis and dementia; she had difficulty moving and communicating and used a wheelchair. Two certified nursing aides (CNAs) who regularly took care of her had many write-ups in their employment files, for issues such as refusing...

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