IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ESTATE OF LEONA MAXIMBy Christine Guest, Executor
Plaintiff,
vs.
KINDRED NURSING & REHAB - STRATFORD, et al.
Defendants. / )
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JUDGE WILLIAM J. COYNE
JURY INSTRUCTIONS, INTERROGATORIES, AND VERDICT FORM REGARDING PUNITIVE DAMAGES
GENERAL
Because you found that The Estate of Leona Maxim is entitled to compensatory damages against KND Development 51, LLC (Kindred Transitional Care and Rehabilitation—Stratford),you must now consider whether you will separately award punitive damages.
BASIS FOR PUNITIVE DAMAGES
Punitive damages may be awarded against the Defendant as a punishment to discourage others from committing similar wrongful acts. You are not required to award punitive damages to the Estate of Leona Maxim, and you may not do so unless you find that the Estate of Leona Maxim has met its burden to prove by clear and convincing evidence that the Defendant acted with malice.
“Malice” means a conscious disregard for the rights and safety of another person that has a great probability of causing substantial harm.
“Substantial” means major or significant and not trifling or small.
EMPLOYEE / EMPLOYER LIABILITY
An employer is liable for acts and omissions of its employees while acting within the scope of employment. You will find for the Estate of Leona Maxim if you find by greater weight of the evidence that:
(A) the nursing employees were employees of the Defendant; and
(B) the acts or failures to act was done by the employee(s) within the scope of their employment; and
(C) the acts or failures to act violated a duty of care owed by employee to the plaintiff;
On the other hand, you will find for the defendant if the plaintiff failed to prove any of the foregoing elements by the greater weight of the evidence, or if you determine that the evidence is evenly balanced on any one or more of the elements.
OJI-CV 537.07 (Liability to third parties: torts)
ALTERING, FALSIFYING, OR DESTROYING MEDICAL RECORDS
An intentional alteration, falsification, or destruction of medical records by a medical professional to avoid liability for medical negligence is sufficient to show actual malice and punitive damages may be awarded whether or not the act of altering, falsifying, or destroying records directly causes harm to the patient.
If you find by clear and convincing evidence that Kindred Transitional Care and Rehabilitation—Stratford employees altered or falsified Leona Maxim’s medical records, then you are permitted, but are not required, to award punitive damages.
Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 635 N.E.2d 331 (1994).
CLEAR AND CONVINCING
“Clear and convincing” means that the evidence must produce in your minds a firm belief or conviction about the facts to be proved. It must be more than evidence that simply outweighs or overbalances the evidence opposed to it.
OJI-CV 303.07
AMOUNT
If you award punitive damages, the amount should be fair and reasonable under all the facts and circumstances. It should neither be excessive nor influenced by passion, sympathy, or prejudice.
1 OJI-CV 315.37(11)
ATTORNEY FEES
If you decide Kindred Transitional Care and Rehabilitation—Stratford (KND Development 51, LLC) is liable for punitive damages, you must also decide whether theyare liable for the reasonable attorney fees of counsel employed by The Estate of Leona Maxim in the prosecution of this action. If you decide that Defendant is liable for those attorney fees, the court will determine the amount.
INTERROGATORY NO. 1
PUNITIVE DAMAGES
Do you find that The Estate of Leona Maxim has proven by clear and convincing evidence that punitive damages should be awarded against Kindred Transitional Care and Rehabilitation—Stratford (KND Development 51, LLC) because either:
(a) it consciously disregarded the rights and safety of Leona Maxim with a great probability of causing substantial harm; and/or
(b) it knowingly altered or falsified Leona Maxim’s medical records in an effort to avoid liability for medical negligence.
(PLEASE PRINT EACH JURY MEMBER’S FULL NAME UNDER THE SIGNATURE.)
CIRCLE YOUR ANSWER IN INK / YES or NO(1) ______/ (2) ______
(3) ______/ (4) ______
(5) ______/ (6) ______
(7) ______/ (8) ______
(1) If six or more jurors answered “yes” to this Interrogatory, move to Interrogatory No. 2, and continue your deliberations.
(2) If six or more jurors answered “no” to this Interrogatory, report this to the Court, and conclude your deliberations.
INTERROGATORY NO. 2
ATTORNEY FEES
Do you find that Kindred Transitional Care and Rehabilitation—Stratford (KND Development 51, LLC) is liable for the reasonable attorney fees of counsel employed by The Estate of Leona Maxim in the prosecution of this action?
(circle in ink) YES or NO
(PLEASE PRINT EACH JURY MEMBER’S FULL NAME UNDER THE SIGNATURE.)
(1) ______/ (2) ______(3) ______/ (4) ______
(5) ______/ (6) ______
(7) ______/ (8) ______
(1) Sign the Verdict for Plaintiff Finding Punitive Damages, report this to the Court, and conclude your deliberations.
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ESTATE OF LEONA MAXIMBy Christine Guest, Executor
Plaintiff,
vs.
KINDRED NURSING & REHAB - STRATFORD, et al.
Defendants. / )
)
)
)
)
)
)
)
)
)
) / CASE NO. CV 16 867545
JUDGE WILLIAM J. COYNE
VERDICT FORM FOR PLAINTIFF AGAINST KND DEVELOPMENT 51 LLC D/B/S KINDRED TRANSITIONAL CARE AND REHABILITATION--STRATFORD
In addition to compensatory damages, we, the jury (make no additional award to Plaintiff The Estate of Leona Maxim) (make an additional award to Plaintiff The Estate of Leona Maxim of $______) [circle your answer in ink] as punitive damages, and we decide attorney fees (should) (should not) [circle your answer in ink] be awarded against Defendant. Each juror concurring in said verdict signs his/her name hereto this ______day of October, 2016.
(PLEASE PRINT EACH JURY MEMBER’S FULL NAME UNDER THE SIGNATURE.)
CIRCLE YOUR ANSWER IN INK / YES or NO(1) ______/ (2) ______
(3) ______/ (4) ______
(5) ______/ (6) ______
(7) ______/ (8) ______
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