HARRISBURG, Pa. – A Pennsylvania appeals court has affirmed $2.7 million in punitive damages against the operator of a nursing home where a 90-year-old woman slipped in a shower and broke her hip in 2018.
Allegations brought in the lawsuit against Green Ridge Care Center say a nursing assistant used the wrong technique to transfer Mildred Bernavage into a shower seat, and expert testimony introduced at trial categorized the company as “reckless.”
A Lackawanna County judge granted the plaintiff’s request to amend her complaint, even though the trial had begun, to include a claim for punitive damages. Two trials were ordered, and if the jury found Green Ridge reckless in the first, the second would address punitive damages. The first verdict was about $300,000, and the second was $2.7 million.
Superior Court judge Victor Stabile, in dissenting from the court’s majority opinion affirming those verdicts, said it was unfair to allow the plaintiff to amend her complaint “at the eleventh hour.” The case is pursued by Carolyn Vanston, Bernavage’s daughter.
Judge Anne Lazarus, writing for the majority, rejected Green Ridge’s issues on appeal, like whether the punitive damages award was excessive considering the size of the first verdict. Amendments of complaints like Bernavage’s are known to often be “to the detriment of the non-moving party,” she wrote.
“Here, Appellants have not articulated with specificity how they were prejudiced by the amended pleadings, such as by identifying what they would have done differently had recklessness been pled earlier,” Lazarus wrote.
“Moreover, Appellants ignore the additional steps they could have taken and the extra time they were provided to prepare for the second trial. As detailed by the trial court, Appellants had several options available to ameliorate the evidence introduced and defend against the claim for recklessness, as well as several months to prepare to do so before the punitive damages claim went before a new jury.
“The mere fact that Vanston’s motion to amend occurred mid-trial and was to Appellants’ detriment, is not, in itself, sufficient to constitute undue prejudice.”
Nursing assistant Virginia Czankner said she used the “transfer method” with Bernavage, who passed away in 2020. Czankner brought in her wheelchair, stood her up and put her hands on the lip of the bathtub. She was then to hold her while the wheelchair was swapped out for a shower seat.
But the move was unsuccessful. Czankner even testified that a safer method was available, known as the “pivot method.” That would have had the two standing facing each other, with Czankner supporting Bernavage while they pivoted in a half-circle and moving her rear from the wheelchair to the shower seat.
A nurse manager also testified there were complaints of slippery conditions in shower rooms and called the transfer method “standard practice” at Green Ridge. A registered nurse testifying as an expert said administration recklessly put patients in harm’s way with the transfer method and a lack of required grab bars in showers.
This encouraged lawyers to seek punitive damages mid-trial, and the granting of that request unfairly prejudiced the defendants, Judge Stabile said in a dissent joined by two others.
“(W)e are faced here with precisely the type of unfair surprise and prejudice that should have prompted the trial court to refuse to permit Appellee to amend her complaint,” he wrote.
“Appellee introduced a theory of recklessness (and with it the ability to recover punitive damages) on the day of the liability trial—essentially the latest possible time. Appellee had ample opportunity to explore the issue of Appellants’ recklessness during the four years of litigation leading up to the trial, and she offers no explanation for her failure to do so earlier.”
