Scott v. Central Arkansas Nursing Centers

• Decision Date: 05 March 2008
• Docket Number: No. CA 06-1252.,CA 06-1252.
• Citation: 278 S.W.3d 587,101 Ark. App. 424
• Parties: Wanda SCOTT, Administratrix of the Estate of Ethel Mince, Deceased, Appellant, v. CENTRAL ARKANSAS NURSING CENTERS, INC., Nursing Consultants, Inc., and Michael Morton, Appellees.
• Court: Arkansas Court of Appeals

278 S.W.3d 587

101 Ark. App. 424

Wanda SCOTT, Administratrix of the Estate of Ethel Mince, Deceased, Appellant, v. CENTRAL ARKANSAS NURSING CENTERS, INC., Nursing Consultants, Inc., and Michael Morton, Appellees.

No. CA 06-1252.

Court of Appeals of Arkansas.

March 5, 2008.

Wilkes & McHugh, P.A., by: Susan Nichols Estes, Melody H. Piazza and Deborah Truby Riordan, Little Rock; and Brian G. Brooks Attorney at Law, PLLC, by: Brian G. Brooks, Greenbrier, for appellant.

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Lyn P. Pruitt and Jeffrey W. Hatfield, Little Rock, for appellees, Robinson Nursing and Rehabilitation Center, LLC, Central Arkansas Nursing Centers, Inc., Nursing Consultants, Inc.

Hardin, Jesson & Terry, PLC, by: Kirkman T. Dougherty, Fort Smith, for appellee, Michael S. Morton.

WENDELL L. GRIFFEN, Judge.

This appeal is brought from the grant of appellees' motions for a directed verdict and the denial of appellant's motion for a new trial. We affirm in part and reverse and remand in part.

I. Factual and Procedural Background

Appellant is the daughter of the late Ethel Mince, who died on September 18, 2002, while residing at Robinson Nursing & Rehabilitation Center. Appellee Central Arkansas Nursing Centers, Inc. (CANC), provided administrative services to Robinson under a written agreement, for which it received three and one-half percent of Robinson's gross revenues. Appellee Nursing Consultants, Inc. (NCI), provided consulting services to Robinson and other long-term-care facilities in exchange for a fee paid by the facilities. Appellee Michael Morton was the sole shareholder of CANC and NCI and a fifty-percent shareholder in Robinson. He acquired his interest in Robinson in late 2001.

In May 2001, Ethel Mince entered Robinson Nursing & Rehabilitation Center. She had a history of heart disease, dementia, and other illnesses, but she was able to walk, feed herself, and attend to her bathroom needs. Her condition remained fairly sound through February 2002, when she developed shaking, chills, cough, and a high fever. A nurse practitioner prescribed an antibiotic, but, by February 16, Mrs. Mince was lethargic and unresponsive. She was transported to the hospital and arrived in critical condition with bilateral pneumonia.

Mrs. Mince recovered enough to return to Robinson on February 25, 2002. Her prognosis was poor, and hospice care was recommended. Nevertheless, she improved somewhat and gained a few pounds, although she could no longer feed herself. But, within several weeks, she began losing weight and developing pressure sores. Thereafter, she steadily deteriorated—her sores got worse, her food intake decreased, and she became incontinent. She died on September 18, 2002. According to Coroner Mark Malcom, Mrs. Mince was in an emaciated condition at her death, which indicated a lack of proper nutrition. Malcom also observed multiple decubitus ulcers (pressure sores) that were decayed and emitting a foul odor. Two of the sores were so severe that the bone was exposed. The death certificate listed congestive heart failure as the immediate cause of death and listed pressure sores and inanition (wasting away due to lack of food and water) as significant conditions contributing to death.

On August 15, 2003, and by an amended complaint dated May 23, 2005, appellant sued Robinson and appellees for wrongful death, negligence, breach of contract, and violation of the Arkansas Long Term Care Residents' Rights statute, Ark.Code Ann. § 20-10-1204 (Repl.2005). She alleged that inadequate staffing and various acts of malfeasance, including improper hygiene, skin care, and nutritional care, proximately caused Mrs. Mince's injuries and death. The case went to trial in early 2006 against all four defendants. At the close of appellant's case, the trial court directed verdicts in favor of appellees on the ground that appellant's evidence against them was so insubstantial that it failed to move beyond speculation and conjecture. The trial proceeded against Robinson, and the jury returned a verdict in Robinson's favor. Appellant then moved for a new trial on the ground that, during voir dire, a prospective juror failed to disclose "potentially relevant and disqualifying information." The trial court did not rule on the new-trial motion, and it was deemed denied on the thirtieth day after it was filed. Ark. R. Civ. P. 59(b). Appellant filed a timely notice of appeal, and she now argues that: 1) the trial court erred in directing verdicts in favor of appellees; and 2) the trial court abused its discretion in denying her motion for a new trial.

II. Directed Verdicts

We first address appellant's argument that the trial court erred in granting directed verdicts in favor of appellees. Appellant contends that she presented substantial evidence from which a jury could find all three appellees liable for negligence or wrongful death.¹ Appellant does not challenge the sufficiency of the evidence to support the jury verdict in favor of Robinson.

A. Standard of Review

In determining whether a directed verdict should have been granted, we review the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003). A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Id. Stated another way, a motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury's verdict for the party to be set aside. Id. Where the evidence is such that fair-minded persons might reach different conclusions then a jury question is presented, and the directed verdict should be reversed. Id. Substantial evidence is evidence of sufficient force and character to induce the mind of the fact finder past speculation and conjecture. Sparks Reg'l Med. Ctr. v. Smith, 63 Ark.App. 131, 976 S.W.2d 396 (1998).

B. Trial Testimony

The following summary of pertinent evidence is taken from appellant's abstract and is recounted in the light most favorable to appellant.

Appellant Wanda Scott and her sister, Marilyn Borecky, testified that, when their mother returned to Robinson in February 2002 after being hospitalized for pneumonia, she was given a poor prognosis. But she improved somewhat and began eating and drinking more. However, both women later became concerned about whether their mother was receiving adequate food and water at Robinson when she began losing weight in May or June 2002. On occasion, they saw their mother's food and water on a tray across the room, out of her reach. They also said that the family requested that Ensure be added to their mother's diet when she began losing weight but that it was a long time before it was provided. Additionally, they observed that their mother appeared thirsty and that she drank two or three glasses of water when they offered it to her. Mrs. Borecky testified that, on several occasions, she found her mother in a dirty diaper with feces under her nails and on the bed rails. She said that staff was sometimes available to change her mother but, at other times, she had to find someone. Both ladies were aware that their mother had bed sores but testified that they were not informed of the extent of them. They complained to the Robinson staff and expressed concern about these situations. It was appellant's opinion that Robinson was not always fully staffed.

Several Certified Nursing Assistants (CNAs) who formerly worked at Robinson testified that they sometimes had difficulty completing their tasks due to lack of staff. Sylvia Molden said that when the facility was short of staff, her resident load increased from ten to seventeen. Among the things that were difficult to accomplish under those circumstances, she said, were turning the residents, feeding them breakfast in a timely manner, taking residents to the bathroom, encouraging fluid intake, and changing the residents. She also said that, if the facility was short of staff, the CNAs would, on the advice of the nurses, leave their documentation blank and fill it in later. Molden testified that she complained to the charge nurse about the staffing and it got better at times. Additionally, she said, during a state survey the floor would be fully staffed but, after the State left, the staffing level would be short again. Molden recalled Mrs. Mince being a resident at Robinson, and she said that she tried to reposition Mrs. Mince every two hours but was not always able to do so. She said that she often found Mrs. Mince and other residents soiled or wet when she began her shift. Molden also said that Robinson did not always have enough linens when she worked there, although she had all the other supplies she needed.

CNA Pamela Holland testified that she would sometimes notice at the beginning of her shift that Mrs. Mince was lying in urine and that she noticed that Mrs. Mince was always lying on her back. Holland further testified that she sometimes found a can of Ensure on Mrs. Mince's bedside table or on the heater, open and full with a straw in it. According to Holland, the number of residents she was required to care for during a shift depended on "who didn't show up for work." She said that Robinson's Director of Nursing "didn't want to hear any complaints." Holland agreed that, when the facility was appropriately staffed, she could get her job done, and she said that there were enough CNAs to properly care for the residents. Holland also said that Robinson lacked enough sheets, pads, and towels.

CNA Dennise Dockery testified that Robinson did not have enough CNAs at times because people quit or got fired or did not show up. She said she was not able to spend the time she needed with people like Mrs. Mince when the facility was short-staffed. S...