Associated Health Systems, Inc. v. Jones, 75443

Citation366 S.E.2d 147,185 Ga.App. 798
Decision Date20 January 1988
Docket NumberNo. 75443,75443
CourtUnited States Court of Appeals (Georgia)

Page 147

366 S.E.2d 147
185 Ga.App. 798
No. 75443.
Court of Appeals of Georgia.
Jan. 20, 1988.
Rehearing Denied Feb. 12, 1988.

Page 148

[185 Ga.App. 803] Steven D. Harris, Nancy P. Phillips, Thomas S. Carlock, Allen F. Harris, Atlanta, for appellant.

James D. McGuire, Mark C. Harper, Montfort S. Ray, Atlanta, for appellee.

[185 Ga.App. 798] BIRDSONG, Chief Judge.

The Crestview Nursing Home appeals from the judgment of the trial court, entered on a jury verdict, for plaintiff Ernest

Page 149

Jones, administrator of the estate of D.L. Jones. In May, 1985, Leon Phillips and D.L. Jones were "intermediate" residents of the Crestview Nursing Home, who required some supervision, but not "around the clock nursing supervision." On the morning of May 24, 1985, a nurse's aide making rounds at approximately 7:15 a.m. found D.L. Jones had been beaten. Jones said Phillips had beaten him. Phillips had a history of prior altercations with other patients in the nursing home. In July 1984, in the TV room, Phillips had struck Mr. Appling with his open hand. Previous to that assault, Phillips had been involved in "verbal aggression...." David Copple, a psychologist and social worker at Crestview, said he talked with Phillips about why this was unacceptable behavior. On April 8, 1985, Phillips hit Mr. Harper, another resident, with a shoe when Harper cursed while they were watching television. Harper was taken to the hospital for observation and Phillips was taken to the "South Mental Health" clinic for evaluation. A psychiatrist prescribed "one milligram of Haldol" which they frequently gave to patients because "[i]t tends to calm patients down. It tends to make them less verbally aggressive ... it tends to slow them down." Phillips was returned to Crestview after spending 20 to 30 minutes with the psychiatrist. Copple also took Phillips to see the psychiatrist again on April 15th.

On May 2, 1985, Phillips had a second altercation with Harper, his roommate, and struck him. Harper sustained no injuries but was moved out of Phillips' room. The following day, May 3, Copple again took Phillips to South Mental Health for another evaluation. The psychiatrist ordered an increase in the dosage of Haldol from one milligram to two, and recommended that Phillips' family be asked to visit him more often.

On May 24, after Jones had been beaten by Phillips, Jones was taken to the hospital. He died four days later, apparently due to natural causes and not as a result of the beating by Phillips. Crestview had documented these incidents so that they were known to Phillips' personal physician when he visited him. After the incident on May 24 involving Jones, Phillips was taken to South Mental Health and they recommended his transfer to the Georgia Regional Hospital. After his transfer to that hospital, they attempted to return him to Crestview and Crestview refused to accept him.

Crestview had a psychiatrist on its staff who visited the facility once each week, but Copple never discussed Phillips with him or sought his advice on this matter. No restraint, isolation, or transfer of [185 Ga.App. 799] Phillips was recommended by anyone at Crestview or South Mental Hospital until May 24 when the clinic recommended his transfer to the Regional Hospital.

Appellee brought this action on a negligence theory, seeking special, general, and punitive damages. The jury returned a verdict in the amount of $782 in special damages, $50,000 general damages, and $200,000 in punitive damages. Crestview's motion for new trial was denied and they filed this appeal. Held:

1. Crestview contends the trial court erred in denying its motion for new trial since there was no evidence of negligence because its ability to control Phillips was limited by Title 31, Chapter 8, Article 5. We agree that Article, OCGA § 31-8-100 et seq., known as the "Bill of Rights for Residents of Long-term Care Facilities," does restrict a nursing home in actions it can take in restraining a resident, thus inhibiting its ability to protect other residents from an aggressive resident. It provides, inter alia: "(a) Each resident shall be free from actual or threatened physical restraints, isolation, or restrictions on mobility within or outside the facility grounds, including the use of drugs to limit mobility, except to the minimum extent necessary to protect the resident from immediate injury to the resident or to others. In no event shall restraints, restrictions, or isolation be used for punishment, incentive, behavior conditioning or modification, or for the convenience of the facility. (b) Restraints, restrictions, or isolation shall be used only subject to the following conditions: (1) Prior to authorizing restraints, restrictions, or

Page 150

isolation, the attending physician shall make a personal examination and individualized determination of the need to use such restraints, restriction, or isolation on that resident and shall specify a reasonable time for such use.... (2) In an emergency situation, restraints, restrictions, or isolation shall be authorized by the person in charge only to protect the resident from immediate injury to the resident or others and shall not be continued for more than 12 hours after the onset of the emergency without personal examination and authorization by the attending physician...." OCGA § 31-8-109. We note that these proscriptions are addressed solely to control by use of "physical restraints, isolation, or restrictions on mobility." See caption of OCGA § 31-8-109. The caption shows the legislative intent that in the use of the word "restriction," its intent was to use it in the sense of a "restriction [ ] on mobility." Sovereign Camp W.O.W. v. Beard, 26 Ga.App. 130, 131, 105 S.E. 629 (1921).

Hence, this statutory guidance does not encompass other forms of supervision, counseling, therapy, or restriction from access to specified areas, i.e., the TV room. This form of "restriction" from an area is not the type proscribed--"restriction" to a specified area--i.e., a bedroom. Restriction to a designated area is a restraint on mobility of [185 Ga.App. 800] the resident and in effect isolates the resident. This is prohibited. A restriction from an area where friction between the residents tend to develop, i.e., the TV room, exercise room,...

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