The Timely Mission Nursing Home v. Arends

• Docket Number: 21-1852
• Decision Date: 21 June 2023
• Parties: THE TIMELY MISSION NURSING HOME d/b/a TIMELY MISSION NURSING HOME and TIMELY MISSION, Plaintiff/Counterclaim Defendant-Appellant, v. KATHY L. ARENDS and PATTI J. FIDERLICK, Individually and as Co- Executors of the ESTATE OF DARLENE WEAVER, Defendants/Counterclaim Plaintiffs-Appellees.
• Court: Iowa Court of Appeals

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THE TIMELY MISSION NURSING HOME d/b/a TIMELY MISSION NURSING HOME and TIMELY MISSION, Plaintiff/Counterclaim Defendant-Appellant, v. KATHY L. ARENDS and PATTI J. FIDERLICK, Individually and as Co- Executors of the ESTATE OF DARLENE WEAVER, Defendants/Counterclaim Plaintiffs-Appellees.

No. 21-1852

Court of Appeals of Iowa

June 21, 2023

Appeal from the Iowa District Court for Winnebago County, James M Drew, Judge.

Timely Mission appeals the district court's admission of certain evidence as well as jury instructions. REVERSED AND REMANDED.

Nancy J. Penner of Shuttleworth &Ingersoll, P.C., Cedar Rapids and Troy L. Booher (pro hac vice) of Zimmerman Booher, Salt Lake City, Utah, for appellant.

Benjamin P. Long, Pressley Henningsen, Brian Ivers, and Laura Schultes of RSH Legal, P.C., Cedar Rapids, for appellees.

Heard en banc.

GREER JUDGE.

The Timely Mission Nursing Home (Timely Mission) appeals the entry of a $6,000,000 verdict against them in favor of Kathy Arends and Patti Fiderlick, individually and as co-executors of the Estate of Darlene Weaver (collectively the Estate). Timely Mission argues the district court wrongly admitted evidence that was hearsay, unfairly prejudicial, and of prior bad acts; it also challenges the admission of state documents with findings of abuse. Finally, it challenges certain jury instructions it believes were not supported by the evidence. Because we find inadmissible evidence was admitted, we reverse and remand for a new trial.

I. Background Facts and Prior Proceedings.

Darlene Weaver moved into Timely Mission in July 2015 for nursing and memory care; among other things, she lived with dementia and Parkinson's disease and had a history of falling. When Weaver arrived at Timely Mission, a comprehensive assessment was done. This tool is meant to provide a full picture of the individual for appropriate care to be provided. Based on that tool, Timely Mission completed a fall assessment which was periodically updated. When Weaver first arrived, she had recently sustained a hip fracture and was designated a one-person assist, meaning she needed someone with her to help get her to the restroom or walk down the hall. But after six months, she was determined an independent ambulator and not a high fall risk.

In April 2017, while moving between her bed and the restroom, Weaver fell. According to Timely Mission's charting, she suffered no serious injury. No changes were made to Weaver's fall assessment. Then, in June of 2017, Weaver fell again while moving between her bed and the restroom and fractured her left hip and shoulder. Less than a week later, she died of complications from the June fall.

Timely Mission filed a claim in Weaver's probate action for unpaid charges.^[1]Then the Estate filed suit against Timely Mission in November 2017; the cases were consolidated, and the Estate eventually paid the remaining balance, leaving only the Estate's claims that Timely Mission's negligence, gross negligence, or recklessness caused Weaver's wrongful death; Timely Mission breached its contract with Weaver by failing to provide care commensurate with her needs; and dependent adult abuse. Additionally, Weaver's children claimed loss of consortium. The Estate sought punitive damages.

Along with allegations about Timely Mission's fall assessment of Weaver and fall-prevention measures, the Estate's argument focused on alleged abuse of Weaver and its impact on her health and willingness to ask for help. This specifically concerned one certified nursing assistant (CNA) at Timely Mission, Melanie Blakesley. Days before the fall, Arends called Timely Mission; the employee who took the call summarized in a note, entered as an exhibit at trial, that Arends did not want Blakesley caring for Weaver because, when Weaver had asked Blakesley for help, Blakesley had told Weaver to "help herself" because "she couldn't be [there] all of the time." The employee who took the call spoke with Weaver, who confirmed this concern. The Estate planned to elicit testimony that fear of staff at a nursing home can prevent residents from asking for help. They also presented witnesses, namely other CNAs or Timely Mission staff who had worked with Blakesley, who would testify they saw Blakesley physically and verbally abuse other residents. The Estate also planned to include documents from the Iowa Department of Inspections and Appeals (IDIA) that contained allegations of, investigations into, and findings of abuse at Timely Mission-some, but not all, involved Weaver as the victim.^[2]

Ahead of trial, Timely Mission filed several motions in limine. One asked the district court to exclude evidence of complaints made to the IDIA that both did and did not involve Weaver. In another, it asked the district court to limit evidence about Blakesley's alleged physical and verbal abuse toward other residents as impermissible prior bad acts evidence and hearsay. A third sought to exclude evidence that Weaver fell because of "fear of Melanie Blakesley or Ms. Weaver's unwillingness to call for assistance."

The district court held a hearing on the motions and determined it would rule on IDIA evidence as it arose during trial. Further, it ruled that any evidence of physical abuse against Weaver was "obviously" admissible, but the admissibility of any evidence of such abuse against another resident would be determined at trial, so the Estate could only "refer to its contentions in a general sense" and not discuss specifics until the court could deem such evidence was admissible. And it overruled Timely Mission's request to exclude evidence about Weaver's fear of Blakesley and its consequences.

The issue of evidence of physical abuse arose during the Estate's opening statement. Outside of the presence of the jury, Timely Mission asserted that the references to physical abuse were "incurably prejudicial" and that there was "scant evidence-certainly not compelling evidence and not substantial-of any type of physical abuse occurring in this case." Realizing this would be a persistent issue, the district court offered Timely Mission a standing objection to references to physical abuse. Timely Mission declined, stating it would "have to watch and see."

Several individuals who were staff at Timely Mission while Weaver was a resident also testified. Darci Beck,^[3] a CNA, testified that she received word from other residents that Blakesley was "rude" or would swear at them; she also testified she witnessed Blakesley swearing at residents and being aggressive during transfers.^[4] Melissa Brandt, a charge nurse, testified she received complaints from other staff about Blakesley swearing at residents and being "physically rough." She also stated she had expressed concerns to Roberta Hagedorn, Timely Mission's Director of Nursing, about the staffing levels, specifically that they needed more CNAs. Paul Armstrong, the maintenance supervisor, also testified he heard concerns or "rumors" about Blakesley from the staff; he directed them to speak to Hagedorn. CNA Colleen Haugen testified she knew Blakesley was not allowed in certain rooms and had heard it was because she was rough with residents and swore at them; specifically, she heard this was why Blakesley was not allowed in Weaver's room for a period. She herself saw Blakesley yell "fuck" and "bitch" at Weaver and tell Weaver to "put her own shoes on." Haugen intervened, asking Blakesley to leave the room, and then reported this information to the charge nurse. CNA Rita Thompson also testified she heard reports from other staff that Blakesley was being abusive toward residents and reported that information to the charge nurse. She also testified she found bruises on the back of Weaver's arms and the top of her shoulder, which she reported to the charge nurse. And finally, portions of facility administrator Stephanie Morris's deposition were read into evidence. Morris testified a state surveyor came to her and reported allegations Blakesley had verbally and physically abused some of the residents; after following up with staff, she determined that some allegations were founded and terminated Blakesley.

Following Brandt's testimony, again outside of the presence of the jury, the district court granted Timely Mission a standing objection to references to verbal and physical abuse of those other than Weaver. The district court specifically noted it was allowing the evidence in to show the abuse "was reported and there was not follow-up investigation," but not for the truth of the allegations.

In addition to the staff members, the Estate offered testimony from several expert witnesses. One, Byron Arbeit, was an expert in health care administration. He explained that, consistent with both state laws and Timely Mission's internal policies, all Timely Mission employees were required to report suspected abuse- including verbal or physical abuse-even if they did not see it occur. He also stated that, based on his review of the evidence in the case, Weaver had been verbally abused and potentially physically abused. Timely Mission objected to his initial statement, citing the earlier motion in limine-the district court overruled the objection. Arbeit explained that if a resident was abused, they would feel threatened, become withdrawn, and be less likely to ask for help. This was echoed by another expert presented by the Estate-Dr. Joyce Black, a nursing professor- who testified residents "can become fearful that they're going to get yelled at, and they can stop asking for help because they don't want to get yelled at."

Also during Arbeit's testimony, the Estate sought to ask him about the IDIA reports, including the one that originated after Weaver's death and concluded she had been abused....