Nebraska Court Upholds $12.5K Award in Hospice Case

September 14, 2009

The Nebraska Supreme Court has upheld a $12,500 award for the family of a woman believed to have suffered excruciating pain for days as she lay dying in an Omaha hospice.

Frances Tolliver’s daughters had been awarded the money in 2008 as compensation for her pain and suffering. They appealed the Douglas County district judge’s decision, saying the jury was allowed to decide only whether the hospice-care providers were negligent and not whether they had misrepresented their services.

In a decision issued Sept. 11, the high court ruled that the family would not have been entitled to additional compensation through the misrepresentation claim. Therefore, the judge did not err in dismissing it.

In their appeal, Tolliver’s daughters had said Hospice House did not disclose that it was licensed to provide assisted-living services, but not inpatient hospice services. They said Hospice House and the Visiting Nurse Association of the Midlands misled the public by presenting it as a hospice-care facility. The daughters had asked that a state law that awards compensation for monetary loss in cases of misrepresentation be expanded to cover their mother’s pain and suffering.

David Domina, the attorney who represented Tolliver’s daughters, said Friday that the family is disappointed by the decision.

“We thought it was very important to ask the Supreme Court to consider making what was considered a step forward in Nebraska law by adopting a new rule. The court decided this wasn’t the case to do that,” he said.

David Welch, who represents Hospice House and the Visiting Nurse Association of the Midlands, said he’s pleased with the court’s decision.

Tolliver was 85 when she died at Hospice House on July 1, 2004. Her daughters have said in court documents that they placed Tolliver there in early June 2004, intending for the facility and its staff to manage her pain as she succumbed to terminal cancer.

But on June 27, a nurse disregarded a doctor’s orders to apply a powerful narcotic patch to Tolliver to help alleviate her pain, according to the family’s lawsuit.

When the daughters asked why the patch had not been administered, they were told the attending nurse did not want to “waste” a patch on someone whose death seemed imminent, their lawsuit said. Instead, staff gave Tolliver narcotic pills – a course Tolliver’s family said was insufficient to ease the pain of her cancer.

In March 2008, a Douglas County District Court jury found that Hospice House and the nurses association were negligent in their care of Tolliver. The family was awarded $12,500.

On the Net:
Nebraska Supreme Court:
Hospice House:
Visiting Nurse Association of the Midlands:

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