Associated Health Systems, Inc. v. Jones

• Decision Date: 20 January 1988
• Docket Number: No. 75443,75443
• Citation: 366 S.E.2d 147,185 Ga.App. 798
• Parties: ASSOCIATED HEALTH SYSTEMS, INC. v. JONES.
• Court: Georgia Court of Appeals

Page 147

366 S.E.2d 147

185 Ga.App. 798

ASSOCIATED HEALTH SYSTEMS, INC. v. JONES.

No. 75443.

Court of Appeals of Georgia.

Jan. 20, 1988.

Rehearing Denied Feb. 12, 1988.

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.

BIRDSONG, Chief Judge.

The Crestview Nursing Home appeals from the judgment of the trial court, entered on a jury verdict, for plaintiff Ernest 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 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 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 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, or even the dining room, may be used by management as necessary as an aid in behavioral control, since it does not isolate or restrain the mobility of the resident from other areas of the grounds and is not a form of physical restraint. Additional or increased observation or supervision over a resident is not proscribed. Relocation of the resident to an area of increased staffing or supervision is an alternative form of behavior control. The use of counseling by staff and family members, or physical therapy for an aggressive resident is permissible. If a resident develops a history of aggressive behavior, the resident's personal physician should be asked for specific recommendations, and if the nursing home is dissatisfied with his recommendations, it can consult its resident doctor or psychiatrist for directions on permissible behavioral control of an aggressive resident. This list is not intended to be all inclusive or exclusive on permissible behavioral controls, but is indicative only of alternative forms of management of an aggressive patient in a nursing home, as contrasted to those proscriptions of OCGA § 31-8-109. The mere fact that a doctor, psychologist, or psychiatrist, has not volunteered to authorize the forms of restraints of OCGA § 31-8-109 does not discharge the duty of a nursing home to exercise "reasonable care and skill" for the care and protection of its residents from a physically aggressive resident. See OCGA § 31-8-108.

The care of aged persons in our society is a matter of great public concern. Many of our elderly require some, if not constant, care or supervision. And, where members of their family are unable to provide such attention, nursing home care sometimes is the only reasonable alternative. Governmental supervision of nursing homes has revealed that many are underfinanced, understaffed, and overcrowded. Residents therein, because of their age or ill health, or both, often are weak, frail, and susceptible to abuse and injury. Some residents have mental health problems as well as physical problems and may not be fully competent to manage their affairs, their daily activities, or to protect themselves from physically aggressive residents. Some residents are irritable, paranoid, belligerent, combative, and are capable of inflicting physical harm upon other aged residents. Nursing homes are not insurers of the safety of their residents, but owe them the duty of ordinary care to protect them from danger or injury which can reasonably be anticipated from the acts of other residents. Bezark v. Kostner Manor, 29 Ill.App.2d 106, 172 N.E.2d 424 (1961); see also Shockley v. Zayre of Atlanta, 118 Ga.App. 672, 674, 165 S.E.2d 179 (1968); see generally 7 CJS 186-187, Asylums § 14; 40 AmJur2d 877, Hosp. &amp Asylums § 36. If there is a known hazard or danger, there must also be a corresponding increase on the part of the nursing home in care and SUPERVISION to prevent injury to a resident. Bezark, supra at 172 N.E.2d 426.

Generally, a person does not have a duty to control the conduct of another person, who is a potential tortfeasor, so as to prevent that person from harming a third person ( Bradley Center v. Wessner, 161 Ga.App. 576, 580, 287 S.E.2d 716 (1982)), unless "(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection." Restatement, Torts 2d, § 315. In the context of a nursing home, over and above the contractual obligation the nursing home assumed to take care of its residents, the State has imposed a statutory obligation for it to...