Cardwell v. Oaks Care Center, LLC

         APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 230, 743 C/W 236, 315, DIVISION "B" HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

          Charles A. Schutte, Jr. Valerie A. Judice Schutte, Terhoeve, et al COUNSEL FOR DEFENDANTS/APPELLANTS: Oaks Care Center, LLC Plantation Management Co., LLC.

          Robert Lewis Bussey Bussey & Lauve COUNSEL FOR INTERVENOR/APPELLANT: Louisiana Patient's Compensation Fund and Oversight Board.

          Gregory Brice Jones Paul Damon Hesse Brice Jones & Associates COUNSEL FOR PLAINTIFFS/APPELLEES: Bartley T. Cardwell Thomas C. Cardwell.

          Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret, Judges.

          JOHN E. CONERY JUDGE.

         STATEMENT OF THE CASE

         In this nursing home malpractice case, defendants, Oaks Care Center, LLC and Plantation Management, LLC, appeal a judgment adopting a jury's verdict in favor of a ninety year old patient with dementia who was injured in a fall from a bedside chair where she had been left unattended by the nursing home staff. The judgment ordered them to pay, in solido, $100, 000.00. Also appealing the judgment is the Louisiana Patient's Compensation Fund and Oversight Board, which was ordered to pay $110, 386.75 (the balance of the amount awarded).

         For the following reasons, we affirm in its entirety the July 29, 2016 judgment in favor of plaintiffs and we assess all appellate costs to defendants, Oaks Care Center, LLC and Plantation Management, LLC. Further, we remand the case to the trial court to conduct a hearing on the post-trial motion to tax trial court costs and determine the date legal interest accrues for all appellants.

         FACTS AND PROCEDURAL HISTORY

         On April 16, 2007, Marguerite Fugler Cardwell (Mrs. Cardwell) fell at her residence and was transported to Christus St. Frances Cabrini Hospital (Cabrini) in Alexandria, where she was admitted because of pain in her low back and shoulder. Her doctors determined she had severe spinal stenosis that was thought to be a factor in her fall. While at Cabrini, she was unable to walk without the assistance of two aides. Her hospital bed rails were used to help prevent her from falling.

         Upon her release from Cabrini on April 23, 2007, Mrs. Cardwell was transported by Acadian Ambulance (Acadian) to The Oaks Care Center, a nursing home owned by Oaks Care Center, LLC and leased and/or operated by Plantation Management, LLC (collectively, the Oaks). The record reflects that Mrs. Cardwell arrived at the Oaks at approximately 4:45 p.m. on April 23, 2007. The physician's telephone orders not only showed she had spinal stenosis, but also Alzheimer's, dementia, colitis, anxiety, depression, muscle weakness and debility, gerd, and pain. Mrs. Cardwell's sons were present when she arrived at the Oaks by ambulance and, aside from stepping into the hall for a short period of time while the ambulance crew was unloading her from the stretcher to her bed, a family member was present until she fell asleep in her bed with its rails up at approximately 8:30 that evening. The family testified that no one from the Oaks performed an evaluation on Mrs. Cardwell, and except for one person coming to the room with a potty chair, the family did not see anyone from the Oaks that evening. At some point after all of her family members left, Mrs. Cardwell was placed in a chair and left unsupervised. The record shows that the Oaks staff administered Ms. Cardwell's medication between 5:30 a.m. and 6:30 a.m. on April 24, 2007. Mrs. Cardwell was found on the floor of her room by the Oaks staff at approximately 6:50 a.m. on April 24, 2007. She was transported by ambulance back to Cabrini, where she was treated for the injuries she sustained in the fall in her room.

         Mrs. Cardwell timely filed a nursing home malpractice claim alleging that the nursing home was at fault for placing her in a chair without proper assessment of her ability to sit unsupervised. A medical review panel convened as required by La.R.S. 40:1231.8(B)(1)(a)(i). A panel of three doctors concluded that the nursing home personnel did not violate the standard of care because the staff of the nursing home followed "doctors' orders" to have Mrs. Cardwell placed "up in chair, frequency as tolerated."

         Mrs. Cardwell timely filed the petitions in these consolidated cases-the first in February, 2008, and the second in September 2009, after the medical review panel issued its opinion. In 2011, Mrs. Cardwell passed away from unrelated causes, and in April 2011, her sons filed a motion to substitute proper parties, which was granted. Because this is a malpractice suit, the law^[1] requires that damages against the health care provider in excess of $100, 000.00 would be paid by the Louisiana Patient's Compensation and Oversight Board (the PCF).

         The case proceeded to trial and a Rapides Parish jury rendered a verdict against Oaks Care Center, LLC and Plantation Management Company, LLC in favor of Mrs. Cardwell's sons.

         At trial, Mrs. Cardwell's son, Thomas, testified that he completed the registration paperwork for his mother before her arrival at the Oaks and he specifically requested that bed rails be used because while his mother was at Cabrini, she once tried to get up without assistance. She required two aides to help her walk. He also completed a restraint consent form authorizing the use of bed rails. Thomas further testified that he was told by the Oaks that a full assessment would be performed to determine what limitations Mrs. Cardwell did or did not have, and the bed rails would stay up until after that assessment. Mrs. Cardwell's family members testified that upon arrival at the Oaks, she was agitated and did not want to be placed in the nursing home.

         Sonia Hagaman, Mrs. Cardwell's granddaughter, testified that before her grandmother was admitted to Cabrini for the fall at home, she was living at home without major problems. She could walk without assistance, feed herself and hold conversations, but was forgetful and had a history of wandering in the yard. At Cabrini, her grandmother was able to walk only with assistance, but had no swallowing issues. Ms. Hagaman testified that while she was with her grandmother at the Oaks on the evening of April 23, 2007, the only time she saw nursing home staff was when she had to ask the staff to help her grandmother use a potty chair. The bed rails of her grandmother's bed were up, except near her feet. Other than the nursing staff that brought the potty chair when requested, Ms. Hagaman did not see any other staff from the Oaks while she was there. Her grandmother was asleep in her bed when Ms. Hagaman left at 8:30 p.m.

         Early the next morning, at approximately 6:45 a.m., Mrs. Cardwell was discovered by the staff of the nursing home on the floor of her room, bleeding. She had apparently fallen from a chair where she had been placed by nursing home staff and left unattended. The nurse's chart stated: "fell on floor, bleeding from nose, swelling noted to right side of head, [complains of] pain to R knee." Another note in her chart stated: "6:50 a.m. Resident attempted to get out of recliner and walk, fell on floor. Assessed resident- bleeding from knee, [complains of] pain at knee." Records from Acadian state: "per [nursing home] staff stated they helped her up and into the chair, then left the room, then [patient] found on floor, fall not witnessefd.]"

         After the fall, Mrs. Cardwell was transported by Acadian from the Oaks back to Cabrini. The records reflect she had bruises on her face, arms, neck, and hands; blood in her hair, ears, and on her face; and a large knot on her forehead. Imaging indicated she had a separated and broken vertebra in her neck, which required spinal surgery. After surgery, Mrs. Cardwell had trouble swallowing and keeping food down and a percutaneous endoscopic gastronomy tube (PEG tube) was surgically implanted. She remained at Cabrini until May 5, 2007, when she was released to Naomi Heights, another nursing home in Alexandria.

         After the fall and subsequent surgery, the evidence showed that Mrs. Cardwell never walked without assistance again, never fed herself again, was in pain, and would pull the PEG tube out, requiring surgical re-implementation. According to Ms. Hagaman, her grandmother was never the same after her fall at the Oaks. She passed away from unrelated causes on January 5, 2011, approximately three years and eight months after her fall.

         Mrs. Cardwell's family testified that they were never provided with an explanation by the Oaks about the incident and were never contacted by the Oaks after the event. Testimony at trial was conflicting as to what the Oaks did or did not do with respect to Mrs. Caldwell. The issues centered around whether the Oaks performed a proper assessment before Mrs. Cardwell was placed in a chair, whether and/or why Mrs. Cardwell was placed unsupervised in a chair, whether the chair had arms or did not have arms, whether Mrs. Cardwell was restrained (including bed restraints or rails), and whether the Oaks' charts had been altered or amended after the accident.

         In addition to Mrs. Cardwell's family, plaintiffs called an expert nurse consultant, Luanne Trahant, who was accepted by the trial court as an expert in the field of nursing homes and assisted living care. In her expert opinion, Ms. Trahant unequivocally testified that the nursing home violated the applicable standard of care, and that Mrs. Cardwell's fall was a result of the fault of the nursing home staff. Mrs. Cardwell's treating neurosurgeon, Dr. Gregory C. Dowd, then testified that Mrs. Cardwell's fall was the cause of the injuries and fractures to her neck, and her treatment for these injuries was related to her fall at the nursing home.

         After the plaintiffs had rested their case, the defense moved for a directed verdict, which the trial judge denied, stating, "there's enough direct and indirect evidence to deny [defendants'] motion."

         The defense presented the live testimony of Dr. Michael G. Buck, who served on the medical review panel and was accepted as an expert in family medicine and in nursing home/long-term care for elderly people. The video deposition of Dr. Susan E. Nelson, who was qualified as an expert in internal medicine, geriatric care, nursing home and long term care was also presented to the jury. The defendants' experts testified that the nursing home followed the standard of care and the Oaks was not at fault for Mrs. Cardwell's fall or resulting injuries. Defendants also presented the testimony of Mona Crawford, who was the minimum data set (MDS) coordinator at the Oaks at the time of the accident, and the testimony of Ursherell Price, who was an LPN^[2] working at the Oaks at the time of the accident.

         At the conclusion of all of the evidence, and after closing arguments, the trial judge instructed the jury. Counsel for all parties approved the jury instructions without objection. The jury instructions included an explanation of the plaintiffs' burden of proving the degree of knowledge and skill possessed or degree of care ordinarily exercised by a nursing home staff; that plaintiffs had to prove that more likely than not the nursing home staff in this case either lacked this degree of knowledge or failed to use reasonable care and diligence; and that Mrs. Cardwell's injuries were caused by the nursing home's lack of skill or failure to use reasonable care and diligence. The jury instructions further stated that the duty of the nursing home was "to provide a reasonable standard of care taking in consideration each patient's known mental and physical condition" and the nursing home staffs conduct is evaluated "in terms of reasonableness under the circumstances existing" at the time of the incident. The instructions then explained to the jury Louisiana's law on medical review panels and damages; specified what the jury could consider when making an award of damages; and asked the jury to render an impartial verdict, assigning them to "find and declare the truth."

         The case was submitted to the jury by way of special interrogatories that were approved by the trial court without objection by counsel. Three questions were asked of the jury. First, "have the plaintiffs, proven beyond a preponderance of the evidence that Oaks Care Center, LLC and Plantation Management Company, LLC, through their employees, breached the applicable standard of care required with regard [to] the care provided to Marguerite Fugler Cardwell[?]" The jury answered unanimously, "yes." Second, "did the breach of the applicable standard of care [the jury] found in question no. 1 above, cause injury to [Mrs. Cardwell] that she would not have incurred otherwise?" By a ten to two vote, the jury answered "yes." And third, "if damages are awardable to the plaintiffs for injury to [Mrs. Cardwell], please specify the amount in dollars." The jury unanimously awarded $100, 000.00 for physical pain and suffering, $50, 000.00 for mental pain and suffering, and $60, 306.75 for medical expenses for Mrs. Cardwell's survival damages. On July 29, 2016, the trial court entered judgment memorializing the jury's verdict in favor of plaintiffs.

         The Oaks timely filed a motion for new trial, which was set for a September 19, 2016 hearing. At the hearing, the trial court granted the motion for new trial, vacated its July 29, 2016 judgment memorializing the jury's findings, and rendered judgment in favor of The Oaks, dismissing plaintiffs' case with prejudice at their cost. The trial court signed a judgment on October 7, 2016.

         Plaintiffs, Bartley and Thomas Cardwell, filed for supervisory writs with this court, which were granted and made peremptory on January 5, 2017. This court overturned the trial judge's order for new trial and vacated the trial judge's October 7, 2016 judgment, stating:

WRIT GRANTED AND MADE PEREMPTORY. While a trial court is vested with discretion in deciding whether to grant motion for new trial pursuant to La.Code Civ.P. art. 1973, "the jury's verdict should not be set aside if it is supportable by any fair interpretation of the evidence." Gibson v. Bossier City General Hosp., 594 So.2d 1332, 1336 (La.App. 2 Cir. 1991), citing Willis v. Louisiana Power & Light Co., 524 So.2d 42 (La.App. 2 Cir.), writ denied, 525 So.2d 1059 (La. 1988). We find that a fair interpretation of the evidence presented provides support for the jury to conclude that the actions of the employees of Oaks Care Center amounted to a breach of the standard of care and caused the neck injuries sustained by Marguerite Fugler Cardwell. As such, we find that the trial court abused its discretion when it found that a new trial is warranted in this case. Therefore, we hereby reverse the trial court's ruling and enter judgment denying Defendants' motion for new trial. This case is remanded for further proceedings in accordance with this court's ruling herein.

Cardwell v. Oaks Care Center, 16-870 (La.App. 3 Cir. 1/5/17). The trial court's judgment of July 29, 2016 awarding damages in the amounts determined in the jury's verdict in favor of plaintiffs was reinstated, and the defendants timely appealed.

         ASSIGNMENTS OF ERROR

         The Oaks assigns the following errors:

1. The plaintiffs did not establish the standard of care applicable to the Oaks;

2. The jury's finding that the Oaks breached the standard of care was clearly wrong and manifestly erroneous;

3. The jury's finding that a breach of the standard of care by the Oaks caused damage to Cardwell was clearly wrong and manifestly erroneous; and

4. The jury's finding that the Oaks breached the standard of care and caused injury to Marguerite Cardwell that she would not have incurred otherwise was clearly wrong and manifestly erroneous.

         The Louisiana Patient's Compensation Fund and Oversight Board assigns the following errors:

1. It was an error to assess prejudgment court costs against the PCF from the date of filing of the medical malpractice complaint with the Division of Administration;

2. It was error by the jury to find that the defendants breached the standard of care;

3. It was error by the jury to find that the defendants "caused" the damages incurred by the plaintiff. La.R.S. 9:2794(A)(3) requires the plaintiff to prove that as a "proximate result" of the defendant's failure to use the required degree of care, "the plaintiff suffered injuries that would not otherwise have been incurred"; and

4. Alternatively, it was error by the jury to assess the damages that were assessed. (Damages are excessive in this instance.)

         The assignment of errors of both appellants will be considered in conjunction with one another where possible.

         LAW AND DISCUSSION

         In this appeal, our primary objective is to review the trial court record for manifest error and abuse of discretion. In Evans v. Lungrin, 97-541, 91-511, pp. 6-7 (La. 2/6/98), 708 So.2d 731, 735, our supreme court articulated the following standard of review for jury findings: "It is well-settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is 'clearly wrong.' Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989)." See also Stobart v. State through Dep't of Transp. and Dev'p., 617 So.2d 880 (La. 1993). Our supreme court further articulated the role of an appellate court when conducting a review for manifest error in Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592 (La. 12/8/15), 193 So.3d 1110. It explained:

In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass' n, 02-2660, p. 9 (La.6/27/03), 851 So.2d 1006, 1023. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Hall v. Folger Coffee Co., 03-1734, p. 9 (La.4/14/04), 874 So.2d 90, 98. Rather in reversing a trial court's factual conclusions with regard to causation, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993).

This test requires a reviewing court to do more than simply review the record for some evidence, which supports or controverts the trial court's findings. The court must review the entire record to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Parish Nat. Bank v. Ott, 02-1562, pp. 7-8 (La.2/25/03), 841 So.2d 749, 753-54. The issue to be resolved on review is not whether the judge or jury was right or wrong, but whether the judge's or jury's factfinding conclusion was a reasonable one. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989); Canter v. Koehring Co., 283 So.2d 716, 724 (La. 1973).

Hayes Fund, 193 So.3d at 115-16.

         1. Standard of Care

         The legislature has enacted special legislation limiting the right to sue certain health care providers, including nursing homes. See La.R.S. 1231.1(10). Louisiana's Medical Malpractice Act (the MMA) provides that the plaintiff must establish that the health care provider breached the applicable "standard of care" in the locale where the services were provided. See La.R.S. 1231.1(22).^[3]

         In this case, the Oaks and the PCF argue that plaintiffs have failed to establish the proper standard of care for nursing home patients such as ...