Estate of Boulier v. Home
| Decision Date | 13 February 2014 |
| Docket Number | Docket No. Aro–12–528. |
| Citation | 86 A.3d 1169,2014 ME 22 |
| Parties | ESTATE OF Vera BOULIER v. PRESQUE ISLE NURSING HOME. |
| Court | Maine Supreme Court |
OPINION TEXT STARTS HERE
Kenneth W. Hovermale, Esq. (orally), Hovermale Law, Portland, on the briefs, for appellant Estate of Vera Boulier.
Christopher C. Taintor, Esq. (orally), Norman, Hanson & DeTroy, LLC, Portland, and J. William Druary, Jr., Esq., Marden, Dubord, Bernier & Stevens, P.A., LLC, Waterville, on the briefs, for appellee Presque Isle Nursing Home.
Panel: SAUFLEY, C.J., and LEVY, SILVER, MEAD, and JABAR, JJ.
[¶ 1] The Estate of Vera Boulier appeals from a judgment entered in the SuperiorCourt (Aroostook County, Hunter, J.) in favor of Presque Isle Nursing Home (PINH), following a jury's determination that PINH was not liable for Boulier's death, which resulted from a fall on PINH's premises. The Estate contends that the court erred in excluding evidence of remedial measures taken by PINH after Boulier's fall, and in rejecting the Estate's proposed jury instructions. We affirm the judgment.
[¶ 2] This action arises from the death of Vera Boulier, who died at the age of eighty-five as a result of injuries she sustained from a fall while she was a resident at PINH. As it does for each resident in its care, PINH had developed a care plan for Boulier, who had resided at the facility since 2006. A care plan is the individualized “blueprint” that instructs PINH's staff as to each resident's needs. The care plan PINH created for Boulier accounted for her high susceptibility to falls and was regularly updated to reflect her condition and to inform PINH's staff of the level of assistance she required. On the morning of Boulier's fall, her care plan stated that she required “one assist” when going to and from the toilet.
[¶ 3] Boulier routinely left her bed several times per night to use the bathroom, often without requesting assistance. Absent a physician's order, PINH cannot restrain its residents to prevent them from leaving their beds. Instead, it uses automated bed alarms to alert the staff when a resident gets out of bed during the night.
[¶ 4] Early in the morning of January 16, 2009, Wendy Charette 1 was the certified nurse's aide (CNA) assigned to Boulier's care. Charette heard Boulier's bed alarm sound, went to check on her, and found Boulier seated on the toilet in the bathroom. This was a frequent occurrence for Charette, who had cared for Boulier for approximately two years. Charette understood the “one assist” directive in Boulier's care plan to mean that when Boulier was using the toilet, the attending CNA was to stay in the vicinity of the bathroom and assist Boulier as necessary while also respecting her privacy.
[¶ 5] When she found Boulier in the bathroom on the morning of January 16, Charette did not have sanitary gloves on her person or immediately within reach. Charette asked Boulier to stay where she was so that Charette could retrieve a pair of gloves. Boulier nodded, and Charette stepped out of the bathroom to retrieve gloves from a dispenser located approximately five to six feet from the entrance to the bathroom. While Charette was retrieving the gloves, Boulier fell and struck her face on a trashcan, sustaining a serious laceration. Boulier was immediately hospitalized, and died from her injuries about one week later.2
[¶ 6] In May 2009, Boulier's estate commenced an action against PINH for professional negligence in accordance with the Maine Health Security Act (MHSA), 24 M.R.S. §§ 2501–2987 (2009).3 As requiredby the MHSA, the Estate filed a notice of claim in the Superior Court naming PINH as the defendant. See24 M.R.S. § 2903(1)(A). The notice of claim asserted that PINH “negligently treated” Boulier; “that the negligence consists of, but is not limited to leaving ... Boulier alone in the bathroom”; and that PINH's negligence caused Boulier's death.
[¶ 7] The Estate presented its case to a mandatory prelitigation screening panel, in accordance with 24 M.R.S. § 2854(1).4 Although the record does not definitively establish the theories of liability that the Estate presented to the screening panel, it does establish that the panel reviewed the deposition transcript of Sandra LaPorte, R.N., the Estate's expert witness. In her deposition, LaPorte expressed criticism regarding Charette leaving Boulier alone in the bathroom, and PINH failing to have gloves or a call bell available in Boulier's bathroom. When counsel for PINH asked LaPorte if she had any other criticisms of the care PINH provided to Boulier, LaPorte responded that she could not answer the question without knowing whether Charette “[had] the information that she needed to provide the care to Ms. Boulier.” Counsel for PINH responded that he would “include that in our list that we've been making as we go along here.”
[¶ 8] Following the presentation of the evidence, the screening panel made findings regarding liability pursuant to 24 M.R.S. § 2855(1) that are not part of the record.
[¶ 9] Following the screening panel's determination, the Estate filed a complaint in the Superior Court alleging PINH's negligence and requesting a jury trial. Prior to trial, PINH filed a motion in limine to exclude evidence that it had installed glove dispensers in its residents' bathrooms after Boulier's fall occurred. PINH stated in its motion that, at trial, it would not controvert the feasibility of installing glove dispensers. The court granted PINH's motion on the ground that evidence regarding the installation of glove dispensers in the bathroom of each resident constituted inadmissible evidence of subsequent remedial measures pursuant to M.R. Evid. 407. 5
[¶ 10] A jury trial was held in September 2012. At trial, the Estate introduced in evidence an incident report composed by PINH shortly after Boulier's fall. The report briefly described how Boulier's fall occurred. Although the original report recited that, after Boulier's fall, PINH installed glove dispensers in its residents' bathrooms and instructed its staff to carry gloves, that information was redacted from the report entered in evidence. 6
[¶ 11] In its opening statement, the Estate told the jury that the issues for its consideration would be the conduct of Wendy Charette and whether gloves should have been more readily available to her:
The dispute is over ... what was the standard of care when Wendy Charette, the CNA, discovered Vera alone by herself on the toilet. Number one, should there have been gloves already in the bathroom so she wouldn't have to leave Vera? Number two, if gloves weren't in the bathroom, should she have had them with her? And, number three, even if there were no gloves there in the bathroom, should the CNA have left Vera by herself even for a short period of time?
....
[The defendant's expert witness] will tell you that in her opinion, it wasn't [a] deviation from the standard [of] care or it wasn't negligence for, number one, the CNA to leave the bathroom, and it wasn't negligent for them not to have gloves in the bathroom.... [T]hat's going to be the primary dispute that you are going to be asked to adjudicate in this case or make a decision about.
[¶ 12] Consistent with the Estate's opening statement, the bulk of the Estate's case-in-chief focused on these theories of negligence. However, the Estate also elicited testimony regarding the importance of clearly communicating patient care plans to CNAs. Charette testified that, at the beginning of each shift, she received a shift report indicating any changes in a patient's care plan. The Estate's expert witness, Sandra LaPorte, testified that shift reports like the one Charette described are critical to effectively communicating a patient's care plan to the CNAs on duty. LaPorte did not identify any other strategies a nursing home should employ in communicating its care plans to its staff, nor did she identify any way in which PINH deviated from the applicable standard of care when it communicated Boulier's care plan to Charette.
[¶ 13] At trial, the Estate also sought to revisit the issue of whether the court should exclude evidence that, shortly after Boulier's fall, PINH installed glove dispensers in the bathrooms of its residents and instructed its staff to carry gloves. Consistent with PINH's concession to the court in its earlier motion in limine, PINH's Director of Nursing testified at trial that it was feasible to install glove dispensers in residents' bathrooms and to require staff to carry gloves. Later in the trial, when the Estate questioned Charette regarding her decision not to carry gloves, Charette responded that it was an individual decision based on her concern that carrying gloves could spread infection. Following Charette's response, the Estate argued that Charette's testimony “raises a feasibility argument that resurrects a subsequent remedial measure issue” and that the court should admit the evidence of subsequent remedial measures PINH took after Boulier's fall. The court denied the request.
[¶ 14] At the close of evidence, the court indicated that its jury instructions would direct the jury to focus on whether Charette was negligent in leaving Boulier alone in the bathroom while she retrieved gloves. The Estate objected, requesting an instruction that would also allow the jury to find that PINH was liable because it had negligently communicated Boulier's care plan to Charette:
[W]e would seek to have the instruction just be general in terms of the conduct of the Presque Isle Nursing Home as the defendant, which would include Miss Charette's conduct, but also the issue of whether or not clear and concise communication of the care plan was transmitted down the line to the CNAs...
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