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Nursing Home May Be Liable For Punitive Damages In Death

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The Connerwood Healthcare nursing home in Indiana had a history of problems with the care it provided to residents. Jeffrey Barcus was admitted to Connerwood in October, 1995, and his mother, Jennipher Forte, later alleged that the quality of care at Connerwood was what led to his death.

Mr. Barcus’ condition at Connerwood rapidly declined after his admission. According to his mother, the home committed several negligent acts and omitted important care; seven days after his admission, Mr. Barcus died on October 9, 1995.

Ms. Forte was appointed as her son’s Personal Representative in a probate proceeding, and proceeded to file a lawsuit against Connerwood for his wrongful death. In addition, she filed her own lawsuit, alleging that Connerwood’s negligence had deprived her of her child, and of her ability to receive assistance from her son. She also sought punitive damages from Connerwood, alleging that their failures were “willful and wanton.”

Connerwood asked the trial judge to dismiss at least part of Forte’s claim. The nursing home argued that there is no legal cause of action for loss of support of a child, and that any support Ms. Forte would have received was entirely speculative. The trial judge agreed, and dismissed Ms. Forte’s claims for loss of support and for punitive damages.

The Indiana Court of Appeals disagreed with that interpretation of Indiana law. By a 2-1 split, the three appellate judges decided that a mother can bring a lawsuit for the loss of support of a child. The fact that the possibility of such support is not high, or that the value of services is slight, does not prevent Ms. Forte from making the claim.

More importantly, if Ms. Forte can prove even a nominal amount of actual damages she is permitted to add a claim for punitive damages. As the judges noted, punitive damages are not intended to satisfy the actual loss of the plaintiff; they are designed to punish defendants who have committed an egregious wrong. In order to be entitled to punitive damages, Ms. Forte will have to demonstrate that Connerwood acted “with malice, fraud, gross negligence or oppressiveness which was not the result of mistake or other human failing.” Although the loss of services must be shown by a preponderance of the evidence, the existence of a basis for punitive damages must be shown by the higher standard of “clear and convincing” evidence.

In other words, it is by no means certain that Ms. Forte will be able to recover punitive damages from Connerwood, even if she is able to show that the nursing home’s negligence led to her son’s death. The Court of Appeals referred the matter back to the trial court for further proceedings, however, so she will be given a chance to prove her claims.

One judge would have upheld the dismissal of Ms. Forte’s claims. In his dissenting opinion, Judge Baker took pains to distinguish a parent’s right to the support of a child from the better-known claim of loss of consortium between spouses. In the latter, punitive damages are permissible, he noted; that is at least partly because the spousal claim is based on the loss of a sexual relationship and “the accompanying loss of childbearing opportunity.” Because there is no similar non-financial element to the parent child relationship, he reasoned, punitive damages should not be available.Forte v. Connerwood Healthcare, Inc., Dec. 14, 1998.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.