Living v. Richard ex rel. Richard

• Decision Date: 12 July 2018
• Docket Number: NO. 09-17-00251-CV,09-17-00251-CV
• Parties: GOLDEN YEARS ASSISTED LIVING, Appellant v. PRISCILLA J. RICHARD, ON BEHALF OF BRUCE RICHARD, Appellee
• Court: Texas Court of Appeals

GOLDEN YEARS ASSISTED LIVING, Appellant v. PRISCILLA J. RICHARD, ON BEHALF OF BRUCE RICHARD, Appellee

NO. 09-17-00251-CV

Court of Appeals Ninth District of Texas at Beaumont

Submitted on November 27, 2017

July 12, 2018

On Appeal from the 128th District Court Orange County, Texas

Trial Cause No. A150292-C

MEMORANDUM OPINION

This is an accelerated appeal from the trial court's order denying the defendant Golden Years Assisted Living's ("Golden Years" or "Appellant") objections to plaintiff's expert reports and denying a motion to dismiss plaintiff's health care liability claim. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(9) (West Supp. 2017), 74.351 (West 2017).¹ Golden Years timely filed this appeal complaining thatthe trial court erred in overruling its objections to plaintiff's expert reports and in failing to dismiss the health care liability claim of plaintiff Priscilla J. Richard ("Priscilla"), on behalf of Bruce Richard ("Bruce") ("Plaintiff" or "Appellee"). See id. §§ 51.014, 74.351. We affirm.

Procedural Background

Original Petition

On September 9, 2015, Priscilla filed an Original Petition, Requests for Disclosure and Jury Demand ("the petition") against defendants Golden Years and New Century Hospice, Inc. ("New Century") (collectively "Defendants").² The petition asserted a claim of negligence based on care or treatment her husband Bruce received between May and July of 2013 after being admitted to Defendants' facilities in Orange, Texas. The petition alleged that Bruce was admitted to Defendants' facilities in May of 2013, and in June of 2013, he suffered an injury to his left heel. In early July of 2013, Bruce also suffered an injury to "his left lower extremity on the dorsal part of his left foot and ankle." According to the petition, Priscilla saw the second wound on July 15, 2013, and it was apparent to her that the wound had not been properly treated and that Bruce needed to be taken to a hospital. Thereafter,Bruce was transported to Christus St. Mary's Hospital in Port Arthur where he was diagnosed with cellulitis in his left lower extremity and was started on antibiotics. The Richards were informed that due to a delay and lack of proper care to Bruce's wounds at the Defendants' facility, Bruce would probably never walk again and that it was possible that his foot would have to be amputated. The petition further alleged that, prior to incurring these wounds, Bruce could walk with the assistance of a cane, but now he cannot and he probably will not be able to walk ever again. The petition claimed that the agents, servants, and employees of the Defendants breached the standard of care in the treatment of Bruce, were negligent, and that Defendants' negligence was a proximate or medical cause of Bruce's resulting injuries. The petition also asserted the claim under theories of respondeat superior, alter ego, or agency. The plaintiff attached expert reports from Michael J. Streitmann, M.D. and Erika L. Aguirre, R.N. along with a curriculum vitae (CV) for each expert.

Nurse Aguirre's Report

Nurse Aguirre's report and CV reflect that she is a Registered Nurse, board certified as a Clinical Nurse Specialist in Adult Health. She currently serves as a Clinical Instructor in nursing, and she has previously worked as an Infection Control/Employee Health Practitioner. Aguirre's report stated that she had reviewed the medical records for Bruce from Golden Years for June 7, 2013 to July 15, 2013;New Century for May 29, 2013 to July 15, 2013; and Christus St. Mary Emergency Department for July 15, 2013.

According to Nurse Aguirre, Bruce became a resident at Golden Years on May 25, 2013, and his care was transferred to hospice on May 28, 2013, due to his Alzheimer's disease and post-traumatic seizures. On June 10, 2013, a nursing note indicated his physical status was starting to decline, he had become non-ambulatory, and he was bedbound. An assessment by a New Century worker on June 13, 2013, noted that Bruce's cognitive and functional status had declined. On June 19, 2013, a hospice nurse for New Century advised Priscilla that Bruce had developed a new Stage 2 pressure ulcer on his left heel, that treatment would be provided, and that Bruce would be placed on a special mattress to prevent further skin breakdown. According to Aguirre, Bruce's medical records reflect that he received wound care for the pressure ulcer on June 19th, 26th, and July 1st, 3rd, 8th, and 10th. In her report, Aquirre noted that on July 10, 2013, a New Century nursing assessment noted that the wound was "beefy red" and showed no signs of infection. Aquirre further stated that on July 15, 2013, Priscilla requested emergency care for Bruce for "aggressive wound treatment to the left foot."

According to Aguirre, Bruce was transferred to Christus St. Mary Emergency Department where an examination revealed an unstageable pressure ulcer on his leftheel, and also "traumatic draining Stage 2 ulcer to the dorsal aspect [top side] of his left foot." Bruce was diagnosed with cellulitis of the left leg, admitted to the hospital, and treated with antibiotics, pain management, and wound care, and he was discharged on July 19, 2013 and transferred to Magnolia Manor Nursing Home for continued medical care.

Nurse Aguirre stated in her report that the standard of care related to nursing practices in this case required maintenance of a complete and accurate medical record, documentation of a complete and accurate assessment, development of an individual service plan, and interventions to appropriately manage an injury sustained during admission.

Nurse Aguirre stated that Golden Years and New Century breached the standard of care as follows:

(1) "Failure to maintain a complete and accurate medical record[.]" Bruce's medical records from Golden Years include no resident assessment, no resident service plan, no physician orders, no advanced directive, and no examination by a physician. The earliest documentation in Bruce's medical records at Golden Years is dated June 7, whereas he was admitted on May 25.

(2) "Failure to document complete and accurate physiological and mental assessments[.]" Aguirre's report noted that Bruce's records do not include a comprehensive medical, physiological, functional, and mental assessment, which should have been completed within fourteen days of admission.

(3) "Failure to develop an individual service plan[.]" Aguirre's report states that Bruce's medical record from Golden Years includes no individual service plan even though a New Century nurse identified the Stage 2 pressure ulcer on June 19, 2013.

(4) "Failure to provide interventions to appropriately manage an injury sustained during admission[.]" The last wound assessment documented by New Century nursing staff was on July 10, 2013, when a single wound was noted, the Stage 2 pressure ulcer to Bruce's left heel. On July 15, 2013, an evaluation at the hospital identified not only the pressure ulcer to Bruce's left heel, but also a "traumatic wound" on the top of his left foot. Bruce's Golden Years medical records included no documentation concerning when the injury occurred, how it was evaluated or treated, no notification to medical providers, and no orders for wound care. According to Nurse Aguirre, the wound care that Bruce did receive prior to his hospitalization "was inadequate as evidenced by the massive infection that developed."

Nurse Aguirre concluded that

. . . substandard nursing care management of Mr. Richard's injury to the dorsal aspect of his left foot [top side] resulted in severe infection and cellulitis that has left him wheelchair bound. Furthermore, it is well understood within the nursing community, when a patient's condition or situation exceeds the nurse's level of competency, the nurse must notify a medical provider to ensure patient safety. A delay in communication of a new onset of problems causes a delay in addressing these problems with appropriate treatment. The medical providers were not able to make a clinical decision on how to properly address the injury to the dorsal aspect [top side] of Mr. Richard's left foot that caused him to be hospitalized for five days to receive extensive wound care, pain management and intravenous administration of high dose antibiotics for a left leg infection that ensued. The breaches in the standards of care resulted in complications that were entirely preventable.

Dr. Streitmann's Report

Dr. Streitmann's report and CV reflect that he is a board certified plastic surgeon with more than fifteen years' experience caring for patients with wounds. He has also been a wound care director at a hospital in Houston. Streitmann states in his report that "Mr. Bruce Richard was a patient at New Century Hospice from 5/29/13 to 7/15/13, and developed two wounds on his left foot while in that facility." Streitmann noted that the medical record included no documentation of how the wound to the dorsum of the foot had occurred. Streitmann opined that "[t]he heel dressing could have been too tight and caused the wound[]" and that "[l]ack of preventative care, and lack of adequate wound care once the wounds formed, caused the cellulitis." According to Streitmann, "[h]ad the attending physician been informed of the true status and existence of both wounds, debridement and wound care could have prevented the ensuing cellulitis." Streitmann's report also referred to Nurse Aguirre's report "for documentation of multiple breaches in the standard of care at New Century Hospice."

Golden Years' Objections to the Reports and Motion to Dismiss

On October 23, 2015, Golden Years filed objections, arguing that the reports did not comply with the requirements of Chapter 74. Golden Years argued that Plaintiff's expert reports were deficient because (1) the opinions on standard of careand breach were conclusory and did not distinguish between Golden Years and New Century, and (2) Dr. Streitmann's opinions on causation were conclusory because they...