Smith v. Heather Manor Care Ctr., Inc.

• Decision Date: 05 December 2012
• Docket Number: No. CA 12–5.,CA 12–5.
• Citation: 424 S.W.3d 368,2012 Ark. App. 584
• Parties: Cynthia SMITH and Delois Muldrew, as Co–Special Administrators of the Estate of Bettye Hickman, Deceased, and on Behalf of the Wrongful Death Beneficiaries of Bettye Hickman, Appellants v. HEATHER MANOR CARE CENTER, INC. d/b/a Heather Manor Nursing and Rehabilitation Center; Central Arkansas Nursing Centers, Inc.; Nursing Consultants, Inc.; and Michael Morton, Appellees.
• Court: Arkansas Court of Appeals

2012 Ark. App. 584

424 S.W.3d 368

Cynthia SMITH and Delois Muldrew, as Co–Special Administrators of the Estate of Bettye Hickman, Deceased, and on Behalf of the Wrongful Death Beneficiaries of Bettye Hickman, Appellants

v.HEATHER MANOR CARE CENTER, INC. d/b/a Heather Manor Nursing and Rehabilitation Center; Central Arkansas Nursing Centers, Inc.; Nursing Consultants, Inc.; and Michael Morton, Appellees.

No. CA 12–5.

Court of Appeals of Arkansas.

Oct. 24, 2012.

Rehearing Denied Dec. 5, 2012.

David A. Hodges, Little Rock, and Ludwig Law Firm, by: Gene Ludwig, for appellants.

Hardin, Jesson & Terry, PLC, Fort Smith, by: Rex M. Terry, Kirkman T. Dougherty, and Stephanie I. Randall, for appellees.

ROBERT J. GLADWIN, Judge.

This appeal is brought from the grant of appellees' motions for directed verdicts and the denial of appellants' challenge based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the striking of three African–American members of the jury venire by appellees. We affirm.

Bettye Hickman died while a resident of a nursing home in June 2009. Two of Hickman's daughters, appellants Cynthia Smith and Delois Muldrew, are the co-administrators of Hickman's estate. In January 2010, they brought suit against the nursing home, two related entities that provided support services to the nursing home, and the owner of the three companies, respectively, appellees Heather Manor Care Center, Inc., d/b/a Heather Manor Nursing and Rehabilitation Center (Heather Manor); Central Arkansas Nursing Centers, Inc. (CANC); Nursing Consultants,Inc. (NCI); and Michael Morton. ¹ The complaint alleged the following causes of action against all defendants: medical malpractice; ordinary negligence; civil liability for felony neglect; premises liability; res ipsa loquitur; breach of informed consent; breach of fiduciary duty; breach of contract; violation of the Arkansas Deceptive Trade Practices Act; and a wrongful-death and survival claim. In addition, the administrators asserted a claim for violation of the Arkansas Long Term Care Statute, Ark.Code Ann. § 20–10–1201 et seq., against Heather Manor.² The administrators sought both compensatory and punitive damages, costs, and all other relief. The appellees answered, denying most of the allegations and pleading affirmatively the statute of limitations, comparative negligence, act of God, and the negligence of third parties.

Prior to trial, appellees moved to dismiss the complaint, or, for summary judgment. In the brief accompanying the motion, appellees argued that the cause of action on the violation of resident's rights applied only to the licensee, in this case, Heather Manor. They also argued that the claims for negligence, medical malpractice, civil liability for felony neglect of an endangered person, res ipsa loquitur, breach of informed consent, breach of contract, and violation of the Deceptive Trade Practices Act were all subsumed in the claim for medical malpractice, and that the claims for premises liability and breach of fiduciary duty should also be dismissed. The circuit court granted the motions in part and dismissed the administrators' claims based on res ipsa loquitur and violation of the Deceptive Trade Practices Act. The court denied the motion as to the other causes of action.

The case proceeded to a jury trial lasting several days. At the close of the administrators' case, the circuit court granted the motions for directed verdicts on all counts on behalf of CANC, NCI, and Morton. Heather Manor made similar motions on each cause of action. The administrators conceded the causes of action based on premises liability and civil liability for felony neglect, and the circuit court granted the motion as to the claims for informed consent, breach of fiduciary duty, breach of contract, and ordinary negligence. The court denied the motion as to the claims for medical malpractice and wrongful death, as well as the claim for punitive damages. The circuit court initially denied the motion as to the resident's rights claim when made at the close of the administrators' case, but granted it when renewed at the close of all of the evidence. The case was submitted to the jury on the medical malpractice, wrongful-death, and punitive-damages claims. Nine jurors found that the administrators had not proved by a preponderance of the evidence that there was medical negligence on the part of Heather Manor that was a proximate cause of damage to the decedent. This appeal timely followed.

The administrators argue four points on appeal: (1) the circuit court erred in granting a directed verdict in favor of Heather Manor on their resident's rights claim under Ark.Code Ann. § 20–10–201; (2) the circuit court erred in granting a directed verdict in favor of Heather Manor on their claims for breach of contract, ordinarynegligence, and breach of fiduciary duty; (3) the circuit court erred in denying their Batson challenge to the striking of three African–American jurors; and (4) the circuit court erred in granting a directed verdict in favor of CANC, NCI, and Morton.

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. Scott v. Cent. Ark. Nursing Ctrs., Inc., 101 Ark.App. 424, 278 S.W.3d 587 (2008). 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).

The administrators do not challenge the sufficiency of the evidence to support the jury verdict in favor of Heather Manor on the medical-malpractice and wrongful-death claims. During the various motions for directed verdicts, the parties argued issues that they had briefed as part of Heather Manor's motion for summary judgment based on its assertion that the causes of action were subsumed into the medical-malpractice claim. The circuit court allowed the parties to incorporate these arguments into their arguments on the motions for directed verdicts.

In making the motion for directed verdict at the close of the administrators' case, Heather Manor argued that the only testimony concerning the resident's rights claim was expert testimony regarding the professional standards of care at nursing homes. It also argued that there was no testimony as to the rights available under the statute and whether those rights had been violated. The administrators asserted that the evidence in support of their malpractice claim would also support a resident's rights claim. The court ultimately granted the motion without specifying the basis for the ruling, noting that it had almost granted the motion at the close of the administrators' case. The court said that it was convinced that it should be granted at that time.

Because the court did not specify its basis, we address both possible grounds. Although the Arkansas Supreme Court has not expressly considered whether a resident's rights claim is subsumed into a medical-malpractice claim, it has referred to a resident's rights claim as a statutory claim that is separate and distinct from any negligence claim.³Koch v. Northport Health Servs. of Ark., LLC, 361 Ark. 192, 202, 205 S.W.3d 754, 762 (2005). We cannot say that the administrators' resident's rights claim was subsumed into the medical-malpractice claim. Therefore, the circuit court could not properly grant a directed verdict on that basis in favor of Heather Manor. However, a directed verdict in favor of Heather Manor would be proper if the administrators failed to submitsufficient evidence to support their claim.

The Resident's Rights Act provides the following regarding civil enforcement:

(a)(1) Any resident who is injured by a deprivation or infringement of his or her rights as specified in this subchapter may bring a cause of action against any licensee responsible for the deprivation or infringement.

(2) The action may be brought by the resident or his or her guardian or by the personal representative of the estate of a deceased resident.

(3) The action may be brought in any court of competent jurisdiction in the county in which the injury occurred or where the licensee is located to enforce such rights and to recover actual and punitive damages.

(4) The resident may seek to recover actual damages when there is a finding that an employee of the long-term care facility failed to do something which a reasonably careful person would do or did something which a reasonable person would not do under circumstances similar to those shown by the evidence in the case, which caused an injury due to an infringement or a deprivation of the resident's rights.

(5) No separate award of attorney's fees may be made by the court.

Ark.Code Ann. § 2–10–1209(a) (Repl.2005). Therefore, there first must be a finding that an employee erred in failing to do something or erred by doing something. See Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493. Secondly, that error must have caused injury as a result of an infringement or deprivation of the resident's rights. Id.Bedell thus makes it clear that there is a causation element in a resident's rights claim.

The administrators point to evidence that, according to them, establishes violations of the statute; however, they do not point to any...