Townes v. Nat'l Deaf Acad., LLC, Case No. 5D14-904
| Decision Date | 19 February 2016 |
| Docket Number | Case No. 5D14-904 |
| Parties | DENISE TOWNES, AS POWER OF ATTORNEY, ET AL., Appellants, v. THE NATIONAL DEAF ACADEMY, LLC, ETC., Appellee. |
| Court | Florida District Court of Appeals |
DENISE TOWNES, AS POWER OF ATTORNEY, ET AL., Appellants,
v.
THE NATIONAL DEAF ACADEMY, LLC, ETC., Appellee.
Case No. 5D14-904
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
February 19, 2016
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge.
Nicholas A. Shannin and Pamela R. Masters, of Shannin Law Firm, P.A., Orlando, and Michael J. Brevda, of Domnick Law, Palm Beach Gardens, for Appellants.
Mark Hicks, Mary Gniadek, and Shannon Debus-Horn, of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Julie W. Allison, of Julie W. Allison, P.A., Miami, for Appellee.
EDWARDS, J.
Denise Townes, individually, and on behalf of her niece, Cinnette Perry ("Perry"), a minor, ("Appellants") appeal the trial court's entry of final summary judgment in favor of the National Deaf Academy, LLC ("NDA"). About one month after her admission to NDA,
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Perry was throwing rocks at staff members and windows. In an effort to control her behavior, staff members employed a specific physical restraint method. As she was forced to the ground, Perry's leg was injured and ultimately required amputation. For the reasons discussed below, we affirm in part and reverse in part.
On July 17, 2008, Perry was admitted to NDA following an acute psychiatric inpatient admission at another facility. NDA operates as both a school and a residential treatment facility, licensed pursuant to Chapter 394, Florida Statutes (2008), for deaf, hard of hearing, and autistic individuals suffering from psychiatric and behavioral disorders. NDA offers psychiatric, psychological, medical, speech therapy, and educational services to its residents. NDA's staff includes psychiatrists, nurses, teachers, therapists, and sign language interpreters.
Before going to NDA, Perry was diagnosed with bipolar disorder-mixed, intermittent explosive disorder, impulse control disorder not otherwise specified, conduct disorder, and post-traumatic stress disorder. During her admission, an NDA psychiatrist established a plan of care for Perry that included Therapeutic Aggression Control Techniques ("TACT"), which involves staff members physically restraining the resident. Prior to employing a TACT hold, the most senior employee on scene is required to make a determination as to whether the TACT hold is an appropriate method to control the resident.
On August 7, 2008, Danielle Warren, a nurse employed by NDA, received notice that Ms. Perry "eloped off campus." When Perry voluntarily returned to NDA's campus,
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she began throwing rocks at NDA staff and its buildings, causing several windows to shatter. Perry also pulled on cables, wires, and lightning rods, trying to dislodge them.
After the staff removed the other residents from the area, four NDA staff members attempted to verbally de-escalate the situation. Since Perry was not responding to the verbal de-escalation attempts, Nurse Warren made the decision to perform a TACT protective hold. After Nurse Warren called Dr. Karen Goldberg, NDA's Associate Medical Director, the staff attempted to employ a TACT hold. The attempt was unsuccessful as Perry was agitated. According to Nurse Warren, Perry positioned her toe down into where "the dirt meets the concrete" and then wrapped her leg around Nurse John Barclay, causing both to fall. As she fell, Perry sustained an injury to her leg, which the staff believed to be a dislocated knee. While they were waiting for the paramedics, NDA staff conducted a full physical assessment of Perry and, pursuant to Dr. Goldberg's recommendation, gave Perry her previously prescribed medication. According to Nurse Barclay, Perry had a defined pulse in the affected leg. Approximately twenty minutes later, the ambulance arrived and took Perry to Florida Hospital.
On August 9, 2008, as a result of the injury sustained during the attempted TACT protective hold, Perry underwent a left above-the-knee leg amputation. Her preoperative diagnoses were nonviable left leg after knee injury, popliteal artery disruption, and compartment syndrome.
Appellants' current attorneys, their third legal team, filed the original complaint against NDA on April 23, 2012. Counts I and II of the original complaint alleged that NDA, through its employees and agents, negligently injured Perry by: failing to properly care for
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her, failing to recognize that NDA was unable to care for her, failing to send her to a higher level care facility, failing to maintain control over her, failing...
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