A Cobb County jury delivered a post-apportionment award of $850,000 to the family of a bed-bound hospice patient whose arm was fractured and left untreated until one of her sons called 911 two days later. Betty Jean Alexander, 78, died nine days after her injury from Alzheimer's dementia.

But apparent confusion by jurors who deemed one co-defendant partly at fault for Betty Jean Alexander's injury but did not assign her any damages almost scuttled the verdict.

The completed verdict form had an "x" next to the name of a caregiver declared liable for Alexander's injuries, one of five co-defendants found at fault. But the page apportioning damages contained a zero next to her name. Her employer, co-defendant Brittany House Assisted Living and its owners, were apportioned 75% of the fault.

Defense lawyers sought to have the verdict declared null and void, while the plaintiffs argued that there is nothing in Georgia law specifying that an at-fault party must be apportioned damages.

After convening a hearing last month, Cobb County State Court Judge David Darden ruled Thursday that the verdict could stand.

A lawyer for one set of co-defendants said the issue may provide grounds for an appeal. 

Hawkins Parnell & Young partner David Marshall represents the Tapestry Hospice defendants. He said the amount of damages ultimately levied against his client, $100,000, was less than they would have likely paid in any settlement.  

"One of our employees was totally exonerated and the other was found only 10% responsible in a very sympathetic set of facts," he said via email. "We could not have resolved the case prior to trial for the net award against us." 

"However, we are considering appellate options in light of the failure of the jury to award any  damages to a party found to be at fault," said Marshall, whose team included firm colleagues Debra LeVorse and Pilar Whitaker.

The other set of defendants, all affiliated with the Brittany House Assisted Living facility in Marietta, are represented by Jordan Aldridge and Steve Yaklin of Marietta's King, Yaklin & Wilkins. They declined to discuss the case.

As detailed in court filings and in conversation with attorneys, Alexander had by all accounts very little time left to live when the accident happened.

Lead plaintiffs attorney Eric Hertz said the fact that she was approaching death did not relieve the defendants of the duty to provide adequate care.

"We argued that, under Georgia's hospice regulations, people are entitled to dignity, privacy and safety when they're in hospice," Hertz said. 

"This lady was in a personal care home and they broke her arm, and didn't even admit her to a hospital," he said.

It was only after Alexander's son became alarmed at his mother's swollen arm when he visited two days later and called 911 that she was sent to a hospital. 

"We argued that, under Georgia's hospice regulations and the patients' Bill of Rights, people are entitled to dignity and care when they're in hospice," said Hertz, who tried the case with Eric J. Hertz P.C. colleagues Camille Godwin and Jesse Van Sant, and Houck Law Firm principal S. Bradley Houck, whose firm originated the case. 

According to Hertz, Houck and court filings, Alexander was in an assisted living home when she came under the care of Tapestry Hospice in 2011 after being diagnosed with dementia, adult failure to thrive and a pressure ulcer. 

In 2012, she was moved to Brittany House in Marietta, where she continued to receive hospice care from Tapestry.  

According to defense filings, "Alexander was largely bed-bound, non-ambulatory and required complete assistance with feeding, transfers, and turning and repositioning herself in bed," but occasionally sat in a wheelchair.

In June 2013, Tapestry nurse Udy Moses and Brittany House caregiver Jaqueline Dorsey moved Alexander from her bed to a wheelchair in preparation for a haircut. The Tapestry nurse left, then Dorsey and the hairdresser moved her to a recliner chair, where her hair was cut, then returned her to her bed.  

Moses returned the next day, noticed that Alexander's right arm was swollen and called her case manager, who took a picture of the arm and texted it to the hospice's medical director, Gregory Rainwater.

Rainwater did not personally visit Alexander but diagnosed her with a "superficial blood clot and advised to keep her arm elevated and to administer her usual pain medications."

Alexander's son visited the following evening and called 911 after seeing that her arm was swollen and that she was in pain. 

Alexander was taken by ambulance to the hospital and treated for a fractured arm. Alexander, 78, died nine days later on July 4, 2013. 

Her son and estate administrator, Gary Alexander, sued multiple defendants including Tapestry; Brittany House and its corporate and individual owners; Rainwater, Moses and Dorsey in Cobb County State Court in 2015. 

Houck said there was a failed mediation, and he recalled Brittany House offering $25,000 to settle. "The hospice offered zero," he said.  

When his former law partner who had worked up the case left earlier this year, Houck called in Hertz "because I know Eric loves to try cases."

Prior to trial, Rainwater was voluntarily dismissed as a defendant. Houck said he did not settle out.   

Following a five-day trial, on Sept. 27 the jury found for the plaintiff, finding the Brittany House defendants, Tapestry and Dorsey liable, while clearing Moses. 

The panel awarded $1 million in damages, apportioning 75% of the liability to Brittany House and its owners, 15% to Rainwater and 10% to Tapestry. The panel wrote in no dollar figure for Dorsey who, though named on the verdict form, did not appear for trial.

After subtracting Rainwater's share, the total award was $850,000.

According to Darden's subsequent judgment, he read the verdict, thanked the jury and dismissed them.

None of the defense lawyers raised any objections or asked that the jurors be polled, but after they left "defense counsel asked the court to rule on the sufficiency of the verdict, given what it alleged was discrepancy as to the verdict."

Darden scheduled a hearing to determine whether the verdict should be "set aside as null and void" or entered in favor of the plaintiff.

On Nov. 14, he entered an order carefully dissecting both sides' arguments before ruling for the plaintiff.

For one thing, he noted, the jury had sent out a note asking about respondeat superior fault and essentially asked whether they could transfer the fault of an employee to an employer, to which he had responded in the affirmative.

"Given that exchange, it is apparent to the court that this is what the jury decided in this instance," Dartdent wrote.

In any case, he said, the defense blew their chance to object.

"[I]f the defendants felt the verdict was inconsistent, the time to object was when it was read by the clerk and published to counsel, and before the court released the jury," Darden wrote. "Therefore, the court finds the defendants have waived their right to challenge the verdict."