Stephan v. Millennium Nursing & Rehab Ctr., Inc.

• Decision Date: 05 October 2018
• Docket Number: 1170524
• Citation: 279 So.3d 532
• Parties: Rhonda STEPHAN, as personal representative of the Estate of Bobby Gene Hicks, deceased v. MILLENNIUM NURSING AND REHAB CENTER, INC.
• Court: Alabama Supreme Court

279 So.3d 532

Rhonda STEPHAN, as personal representative of the Estate of Bobby Gene Hicks, deceased

v.MILLENNIUM NURSING AND REHAB CENTER, INC.

1170524

Supreme Court of Alabama.

October 5, 2018

Rehearing Denied December 14, 2018

Michael K. Timberlake and Christopher M. Wooten of Siniard, Timberlake & League, P.C., Huntsville, for appellant.

Scott Burnett Smith, H. Harold Stephens, S. Daniel Kaufmann, Angela M. Schaefer of Bradley Arant Boult Cummings LLP, Huntsville, for appellee.

BOLIN, Justice.

Rhonda Stephan as the personal representative of the Estate of Bobby Gene Hicks, deceased, appeals from an order granting a motion to compel arbitration filed by Millennium Nursing and Rehab Center, Inc. ("Millennium").

I. Facts and Procedural History

A. Background

Stephan contends that Hicks, her father, died in 2015 while he was a resident at Millennium Nursing and Rehabilitation Center, a skilled-nursing facility owned and operated by Millennium ("the Rehab Center"). During Hicks's hospitalization at Crestwood Medical Center ("Crestwood"), Stephan signed all the paperwork arranging for her father to be discharged from the hospital and transferred to the Rehab Center; however, she did not hold a power of attorney or other actual legal authority to act on Hicks's behalf or to contract in his name. Hicks did not sign any of the paperwork, but he is named as a party to the contracts included within that paperwork. On October 26, 2015, Hicks was transferred from Crestwood to the Rehab Center.

B. Mental-Health History

Medical records indicate that Hicks first presented to the Clinic for Neurology, PA, in August 2014 complaining of memory impairment

. Hicks reported that his "memory problems have been going on for awhile" and that "it is more short term memory than long term." In summarizing the history of Hicks's illness, Dr. Scott C. Hitchcock, a doctor of osteopathic medicine, noted:

"This is a pleasant gentleman but [is] having some short-term memory problems. He has not noticed it but family members have. His memory has slowly been worsening over more than a year. He constantly will repeat questions or conversations. He will ask about family members to have hard [sic] he passed away. He has difficulty fixing things. He has difficulty utilizing the microwave at times. He will get frustrated or angry more easily. He also loses items constantly. The patient has some word finding problems at times. 80s [sic] not noticed any exacerbating or alleviating factors. No definite other associated factors except for some depression. He feels like he is sleeping well. He is not having hallucinations. No history of any head injury

, stroke, seizures or anoxia. Head CT showed some white matter changes and atrophy. B12 level was normal in the 400s."

In the physical-examination findings, Dr. Hitchcock also noted that Hicks was "not oriented to year or date." Dr. Hitchcock assessed memory loss or impairment, specifically noting his impression as follows:

"[T]his is a very pleasant 78-year-old gentleman with slowly progressive cognitive impairment. [H]e has significant short-term memory problems and tends to repeat conversations or questions. He has difficulty using items in the house such as the microwave. [He] will ask how family members are doing, although they've been dead for many years. [H]is mini-mental status exam was 22/30. I suspect [ ]he likely has senile dementia of alzheimer's type

. [H]ead CT was unrevealing[;] B12 was normal. We will go ahead and check TSH as well as homocysteine and a sedimentation rate. He is on Aricept 10 mg which we will continue. He does have depression which may be worsening his memory. We will continue trazodone at 25 mg of Zoloft. I also will check an EEG. In the future we likely will start Namenda."

Hicks returned to the clinic in November 2014 reporting cognitive difficulties. Dr. Hitchcock noted:

"Patient states his memory is good -– Wife says he took his medicine twice the other date -– Wife says patient will forget when he eats and he will eat again -– Patient needs 90 day supply on all scripts. His short-term memory is still very severely impaired. He repeats questions and conversations. Sometimes [ ]he forgets to eat. He will eat again. His wife will give him his medicine and he forgets. Then he will take his medicine again. They have had to hide his medicine from him. He feels like his mood is good. [H]owever, his family members say he still has problems with depression."

Dr. Hitchcock found that, although Hicks was awake and alert, he was "not oriented." The physician assessed memory loss or impairment and noted his impression as follows:

"1. dementia

-– Last mini-mental Status exam was 22/30. Head CT was unrevealing. Labs normal except elevated homocysteine. Continue aricept 10 mg. add namenda XR

"2. depression -- increased zoloft up to a dose of 50 mg

"3. Hyper homocysteinemia -- give samples of cerfolin NAC and rx"

On March 18, 2015, Hicks returned to the clinic complaining of memory impairment and depression. His wife reported that he was "about the same" and that he "tend[ed] to repeat conversations he was asked [sic] the same question again and again [and] he'[d] been sleeping more." She also reported that the police were contacted after he slapped his granddaughter but that he had not had any other violent behavior. The physical examination indicated Hicks was "[n]ot oriented and tends to repeat questions" but that he was "able to follow commands" and had "normal speech and normal language." Dr. Hitchcock's diagnostic impression was dementia

, depression with increased agitation at times, and hyperhomocysteinemia. Hicks was prescribed Namenda, donepezil, sertraline, and Cerefolin to treat his symptoms.

On April 7, 2015, Hicks returned to the clinic with a complaint of memory impairment

, and mental-health personnel renewed his prescriptions. During his final visit to the clinic on September 15, 2015, Hicks again complained of memory impairment.¹ The physician noted:

"Hx of depression, agitation, and hyperhomocysteinemia

-– Wife says memory has worsened since last ov -- Daughter says insurance would not cover Namenda so he hasn't been taking it -– too expensive the agitation does get worse. Sometimes he pulls his hand back like he is going to slap her. However he never has gotten a lot [sic]. He does get agitated easily. He sleeps a great deal. He is good about taking his medicines. He loses things constantly. A [sic] very quickly forgets conversations. He repeats questions. Typically he does not feel sad or depressed. There is no lack of sleep. There have been no new exacerbating or alleviating factors. There have been no new associated factors. No change in the characteristics of symptoms."

The physical examination indicated that Hicks was "not oriented" and that he had "a paucity of speech [which was] not dysarthric." Dr. Hitchcock assessed memory loss and set forth the following diagnostic impression:

"1. dementia

-– Head CT was unrevealing. Labs normal except elevated homocysteine. Continue Aricept 10 mg. Namenda XR was too expensive to afford. We will see generic memantine 10 mg twice a day is a portable.

"2. depression and at times agitation -– zoloft 100 mg. add Ativan to use on an as-needed basis. In the future we also could consider Neudexta, Depakote, or Lamictal.

"3. Hyperhomocysteinemia -- cerefolin NAC

"Depression (311/F32.9)

"Dementia, neurological (349.9/G98.8)

"Hyperhomocysteinemia (270.4/E72.11)"

On October 15, 2015, Hicks suffered a fall and sustained fractures to his left hip and clavicle. He was subsequently admitted to Crestwood. After undergoing surgery to treat his injuries, Hicks was referred to the Rehab Center for rehabilitation.

On October 26, 2015, Hicks was discharged from Crestwood and transferred to the Rehab Center. The discharge summary from Crestwood sets forth Hicks's "functional status" as "need[ing] assistance" with "activities of daily living." Medical personnel also indicated that Hicks's cognitive status was "impaired cognition (dementia

)." The discharge summary also summarized the "Hospital Course" as follows:

"Hicks, Bobby is a 79-year-old Caucasian male, with past medical history significant for aortic valve replacement, AICD placement, hyperlipidemia

, and dementia, who presented to our emergency department after a fall. As the

patient [and] his adult daughter were leaving our emergency department, ... the patient fell in our parking lot sustaining a fall injury to his left shoulder, and a left hip. Additionally patient sustained abrasion to his left elbow. X-ray examinations in our emergency department were revealing for left clavicle fracture

and left hip fracture. We consulted with ortho, Dr. Deorio, who recommended contacting the orthopedic trauma service to continue treatment and management of the patient's Left hip. It was Dr. Deorio's recommendation the L Clavicle fx would not require surgical intervention and the patient was placed into a sling. Patient proceeded with Left Hip arthroplasty with Dr. Thomasson. The patient's renal function showed an elevated creatinine and we consulted with Nephrology, Dr. Walker. We obtained urine cultures and the patient was found to have a urine creatinine of 199. Dr. Walker recommended to defer dialysis for now, continue to follow renal function, and increase his IVF due to poor p.o. intake with the patient. The patient is pleasantly demented which made discharge planning difficult. The patient's PT/INR was 3.8.

"During hospitalization the patient developed left lower lobe infiltrate and he was started on meropenem and Zyvox and his infiltrate is improving also he had left-sided conjunctivitis in which Cipro eyedrops was started. The patient was switched to oral doxycycline with aspiration precautions and anti-reflux measures and the case was discussed with Dr. Walker [who] agreed to transfer the patient to skilled nursing facility and follow up as an outpatient.

"The patient is currently eating, drinking, and mobilizing...