Golden Villa Nursing Home, Inc. v. Smith

• Decision Date: 05 April 1984
• Docket Number: No. C3029,C3029
• Citation: 674 S.W.2d 343
• Parties: GOLDEN VILLA NURSING HOME, INC., Appellant, v. Minnie Ellis SMITH, et al., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 343

674 S.W.2d 343

GOLDEN VILLA NURSING HOME, INC., Appellant, v. Minnie Ellis SMITH, et al., Appellee.

No. C3029.

Court of Appeals of Texas,

Houston (14th Dist.).

April 5, 1984.

Rehearing Denied May 3, 1984.

Jay D. Hirsch, Anthony F. Montgomery, Hicks, Hirsch, Glover & Robinson, Houston, for appellant.

Harvill E. Weller, Jr., Krist, Gunn, Weller, Nuemann & Morrison, Houston, Alton C. Todd, Brown & Todd, Alvin, for appellee.

Before JUNELL, MURPHY and SEARS, JJ.

SEARS, Justice.

This is an appeal from a judgment awarding damages for personal injuries received by Appellees Minnie Smith and Amelia Oliver. We affirm.

The main issue to be determined is the standard of care owed by a nursing home to its patients to protect them from causing injury to themselves or others.

Minnie Smith was riding a motorcycle on Highway 35 in Brazoria County when Amelia Oliver, a patient at Golden Villa Nursing Home, Inc., darted on to the highway and knocked Smith and her motorcycle to the ground. Both parties suffered personal injuries. Smith sued Golden Villa for her injuries allegedly caused by Golden Villa's failure to provide proper care and supervision for Oliver. Appellee Cecelia Evans, daughter and court-appointed guardian of Oliver, joined in the lawsuit individually and as guardian of Oliver. She sued Golden Villa to recover damages for the injuries sustained by Oliver. The jury found Golden Villa seventy-five percent (75%) negligent, Smith twenty-five percent (25%) negligent, assessed no finding of negligence against Evans and Oliver and awarded damages to Smith and Evans, as guardian for Oliver.

The record reflects that Oliver, 68 years of age at the time of the incident, had been a resident of Golden Villa for five years. Oliver previously had resided in state institutions for over thirty years. The medical records of doctors who treated Oliver reveal that she suffered from vascular insufficiency, schizophrenia, senility, non-psychotic brain syndrome, confusion and a tendency to wander. Oliver's physicians recommended that she be placed in an intermediate care facility (I.C.F. III Facility). Evans complied with the recommendation and placed Oliver in Golden Villa.

The notations made by Golden Villa's doctors in Oliver's medical records revealed that she had a tendency to wander and that she had, in fact, previously wandered onto Highway 35. The doctors at times ordered temporary restraints to prevent the wandering. Subsequent periodic medical evaluations by Golden Villa's doctors revealed an increasing state of confusion and an increased tendency to wander. Based upon this and other information, Golden Villa's treating physicians set up a "total health care plan" for Oliver which called for close supervision to prevent her from wandering onto Highway 35.

Golden Villa Nursing Home is situated immediately adjacent to Highway 35, a main artery of traffic along the Gulf Coast. The facility is fenced, with the fence located 20-25 feet from the edge of the highway. The fence gates are kept unlocked, pursuant to state and federal fire and safety regulations.

On the day of the accident Oliver was last seen on the porch outside the facility by one of Golden Villa's employees. Of the three employees on duty at the time of the accident, two were eating lunch and one was filling medication cups. No employee or agent of Golden Villa had seen Oliver for approximately an hour prior to the accident. During this unsupervised interval of time, Oliver left the porch, crossed the yard and exited through the unlocked gate. Seeing what she thought was money on the highway, Oliver darted on to the highway to pick it up and collided with the motorcycle driven by Smith.

In its first point of error, Golden Villa alleges the trial court erred in rendering judgment against it because as a matter of law it owed no duty to Oliver. In points of error two through six, Golden Villa alternatively argues the trial court erred in submitting an issue on whether it breached its duty to Oliver and in overruling various objections and motions it made because there was no evidence or insufficient evidence to establish that it breached any duty to Oliver. In its brief, Golden Villa specifically argues that its supervision of Oliver complied with applicable standards, statutes and regulations. In reviewing the matter of law, insufficiency of evidence and great weight points discussed here and later in this opinion, we have considered all of the evidence. On the no evidence points, we have considered only the evidence tending to support the findings. See Associated Milk Producers v. Nelson, 624 S.W.2d 920 (Tex.Civ.App.--Houston [14th Dist.] 1981, writ ref'd n.r.e.).

Golden Villa argues that it did not breach its duty to Oliver. It cites Murphy v. Allstate Insurance Co., 295 So.2d 29 (La.Ct.App.), aff'd, 299 So.2d 787 (La.1974), for the proposition that although a nursing home is not the insurer of the safety of its patients, it does have a duty to provide a reasonable standard of care, but that this duty does not include having a one-on-one nurse/patient ratio or a regular nurse or attendant to follow the patient 24 hours a day. Id. at 34. We agree with this proposition. However, Murphy also establishes the proposition that a nursing home, while not an insurer, must consider each patient's physical and mental condition when formulating a standard of care for that individual patient and abide by that standard. Id.

The facts in Murphy are distinguishable from those in the present case. In Murphy, the nursing home was held not liable for the death of an elderly, senile patient who wandered away and was killed. The accident occurred only four days after the patient was admitted to the nursing home and there was no evidence indicating that the decedent's spouse told the nursing home of the decedent's tendency to wander. Furthermore, the physician attending the decedent left no specific instructions other than to see that the patient did not injure himself, and that the patient was to be attended by another person when leaving the premises. In other words, the patient's known mental and physical condition gave no indication that he was likely to wander. Therefore, the nursing home had no reason or duty to restrain him.

The opposite is true in this case. When Oliver was admitted to Golden Villa, her daughter told the owner and administrator about Oliver's tendencies to wander. Later, the administrator wrote a letter to Oliver's daughter describing an incident in which Oliver had wandered off of the nursing home property. Additionally, the nurses' records indicate that ten months prior to this accident Oliver had tried to walk across Highway 35. In that incident, she was stopped and, upon the treating physician's recommendation, was locked in her room behind "dutch" doors at night to prevent her wandering. Oliver's "total health care plan," previously discussed, contained an entry dated March 2, 1978, which stated, "Confused at times, wanders out of doors" and "patient will be supervised closely when outside so she does not get near traffic." Obviously, Golden Villa knew of Oliver's tendency to wander, and, according to Murphy, was under a duty to take such tendencies into consideration in protecting and providing care for her.

Texas courts recognize that "It [is] the duty of a hospital to provide for the care and protection of its patients, and in the exercise of this duty the hospital [is] required to provide such reasonable care as the patient's known condition require[s]." See e.g., Harris v. Harris County Hospital District, 557 S.W.2d 353, 355 (Tex.Civ.App.--Houston [1st Dist.] 1977, no writ). In other jurisdictions this hospital standard of care has been applied to nursing homes. For example, in Louisiana, "The same general rules apply to nursing homes as hospitals in defining the degree of care owed to patients." Murphy v. Allstate Insurance Co., 295 So.2d at 34-35. Similarly, the court in Nichols v. Green Acres Resthome, 245 So.2d 544, 545 (La.Ct.App.1971), held "a nursing home does have a duty to provide a reasonable standard of care, taking into consideration the patient's mental and physical condition."

We hold that a nursing home in Texas is under a duty to exercise such reasonable care for a patient's safety as his known mental and physical condition may require. No general rule can be articulated, for this standard requires that a determination of what constitutes "reasonable care" be made in each individual case, taking into consideration the individual patient's known mental and physical condition.

Golden Villa alternatively argues that the care it gave to Oliver was the same degree of care, skill and diligence exercised by such homes of the same general type, in the same or similar community and under the same or similar circumstances. However, while conformity with the uniform customs of persons engaged in a like business may be considered as evidence of proper care, it does not preclude a showing that the custom itself tolerates negligence. Air Control Engineering, Inc. v. Hogan, 477 S.W.2d 941, 946 (Tex.Civ.App.--Dallas 1972, no writ) (citing Kuemmel v. Vradenburg, 239 S.W.2d 869, 872 (Tex.Civ.App.--San Antonio 1951, writ ref'd n.r.e.)). See also 40 TEX.JUR.2d Negligence § 36 (1976).

Other states have applied this principle to nursing home situations. In Stogsdill v. Manor Convalescent Home, Inc., 35 Ill.App.3d 634, 343 N.E.2d 589 (1976), a patient in a convalescent home brought an action against the physician, the home, and a co-owner of the home for damages suffered when her leg was amputated as a proximate result of deficient convalescent care. The court held that "[T]he fact that the nursing care given was 'usual' or 'customary' would not, of itself, preclude the possibility of ... negligence...." See also Lundahl v. Rockford Memorial Hospital Association, 93 Ill.App.2d 461, 235 N.E.2d 671 (1968). We find that a...