McGillivray v. Rapides Iberia Management Ent.

493 So. 2d 819
CourtLouisiana Court of Appeal
DecidedAugust 20, 1986
Docket17949-CA
StatusPublished
Cited by8 cases

This text of 493 So. 2d 819 (McGillivray v. Rapides Iberia Management Ent.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGillivray v. Rapides Iberia Management Ent., 493 So. 2d 819 (La. Ct. App. 1986).

Opinion

493 So.2d 819 (1986)

Joy McGILLIVRAY, et al., Plaintiffs-Appellees,
v.
RAPIDES IBERIA MANAGEMENT ENTERPRISES, d/b/a Bossier Health Care Center, Defendant-Appellant.

No. 17949-CA.

Court of Appeal of Louisiana, Second Circuit.

August 20, 1986.

*820 Bodenheimer, Jones, Klotz & Simmons by G.M. Bodenheimer, Shreveport, for defendant-appellant.

James B. Wells & Associates by Sam A. Smith, Bossier City, for plaintiffs-appellees.

Before HALL, C.J., and MARVIN and NORRIS, JJ.

MARVIN, Judge.

In this wrongful death action, the defendant nursing home operator appeals a judgment in favor of the four adult children of the decedent, Odus Fox, who was a 16-month ambulatory resident of the home (Bossier Health Care Center). Mr. Fox died of heart failure after he left the home, unattended, in 42 degree weather wearing only his socks, shorts, and a pajama top.

The trial court specifically found that defendant's employees negligently failed to monitor or supervise Mr. Fox, knowing his condition and his tendency to wander, and being expressly authorized by his children to physically restrain him when necessary to protect against his tendency to wander. The court awarded $25,000 wrongful death damages to each plaintiff. We affirm.

Notwithstanding defendant's arguments to the contrary, we find that the record supports the conclusions of the trial court that defendant's substandard care, factually and legally, caused or contributed to the death of Mr. Fox. These findings are not manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Additionally, the amount awarded is not clearly excessive or abusively high, even in view of Mr. Fox's poor physical condition and the likelihood that he would never fully recover. Reck v. Stevens, 373 So.2d 498 (La.1979).

FACTS

Odus Fox, 69 years of age, who was known to be suffering from cardiovascular problems, wandered outside the nursing home at about 4:00 a.m. wearing only his socks, shorts, and pajama top on a January morning when the temperature in Bossier City was about 42 degrees. Fox's body was found, without pulse or respiration, about 15 to 30 minutes after nurses discovered he was missing from his room. A nurse revived him briefly by using CPR, but death occurred a few minutes later.

Mr. Fox's children are Joy Fox McGillivray, Janie Fox Haynes, James Odus Fox, and Julius Ray Fox. Mrs. McGillivray and Mrs. Haynes placed Mr. Fox in the home in August 1981, while Robert Sellers was the home administrator. At their first meeting, Sellers was told that Mr. Fox was being transferred from another nursing home because "he had been getting out a *821 lot." Mrs. McGillivray testified that she told Sellers her father suffered from hardening of the arteries, diabetes, and poor eyesight and that he was "senile" and "wandered constantly." At Sellers' request, the two daughters of decedent signed documents authorizing employees of the nursing home to physically restrain Mr. Fox when necessary to insure his safety. The daughters did not instruct that Mr. Fox be restrained under any particular circumstances; they merely authorized restraint when his conduct warranted or when a physician so ordered.[1]

The rooms at the nursing home are arranged along two parallel hallways. Each hall exits to the parking lot and receiving area of an adjoining pet store supply business. Mr. Fox was placed in a room located about midway between the exit and the nurses' station for that hall. The nurses' station was located on the same side of the hall as Mr. Fox's room. The diagram attached as Appendix A shows the relative locations.

The nursing home records, including nurses' notes, doctor's orders, and monthly reports on individual patients, indicate that Mr. Fox frequently wandered away from the supervision of nurses during his 16-month stay in the home. In October 1981 Mr. Fox wandered outside and across the street and was noted as "missing" for about 10 minutes. The nurse's note states "family notified and informed that he will be restrained at night to avoid wandering outside building. Daughter states she understands." A November 1981 note states "patient is confused as to time and place and wants to leave daily. Needs close supervision in all areas ... walks about frequently and needs to be checked to prevent leaving the premises." Another note states "needs constant supervision, wanders away and very confused." Similar notes appear in the records through 1982. One nurse testified that Mr. Fox had wandered outside to a nearby pasture "about 5 or 6 times," where he enjoyed watching the cows. It was also stated that on one occasion Mr. Fox climbed over a barbed wire fence and walked "a pretty good piece" into the pasture.

At trial, nurses described their methods of restraint. Bars attached to the beds are raised to prevent patients from falling out of bed, but Mr. Fox managed to climb out of bed even with the bars in place. Nurses occasionally placed Mr. Fox in a vest-type harness that allowed him to move his head, legs, and arms while in bed.

About 4:00 a.m. on January 26, 1983, Lucy Braden, a nurses' aide, discovered Mr. Fox was not in his room. She notified Renee Cooper, the LPN on duty, and a search ensued. Ms. Braden testified that about 15 to 30 minutes later, a nursing home cleaning lady reported that Mr. Fox had fallen in the pet supply parking lot. A worker at the pet supply business testified that one of his co-workers came in the office and said he had seen something that looked like a dummy in the parking lot. He said they then met the two nurses outside (Braden and Cooper) and directed them to where Mr. Fox had fallen between two cargo pallets near the parking lot fence.

Nurse Cooper immediately administered CPR after finding that Mr. Fox had no pulse. When she detected a weak pulse, Nurse Cooper told one of the pet supply workers to call an ambulance. When the worker returned, the four placed Mr. Fox on a blanket and carried him into the pet supply office, where Nurse Cooper finally announced that Mr. Fox was dead.

Defendant complains that each of the trial court's findings of negligence or breach of duty, factual and legal causation, and assessment of damages are clearly erroneous or abusive.

SUBSTANDARD CARE

The standard of care imposed on a nursing home is that of reasonable care, *822 considering the patient's mental and physical condition. Nichols v. Green Acres Rest Home, Inc., 245 So.2d 544 (La.App. 3d Cir. 1971); Noble v. Insurance Company of North America, 248 So.2d 12 (La.App. 1st Cir.1971); Oswald v. Rapides Iberia Mgmt. Enterprises, 452 So.2d 1258 (La.App.2d Cir.1984). This court has said

There is no presumption of negligence on the part of the institution merely because of the injury to a patient ... [A]fter showing it has provided reasonable care for the safety and well being of its patient under the circumstances presented, a nursing home is not liable for injury caused by an untoward event unless it has breached a contractual agreement to furnish special care beyond that usually furnished which relates to the injury giving rise to the cause sued on. Murphy v. Allstate Insurance Company, 295 So.2d 29, 34-35, (La.App. 2d Cir.1974)

The record indicates that the nursing home employees did not agree about the circumstances under which they should restrain Mr. Fox and the mode of restraint they were authorized to use. On one occasion, Mrs. Haynes had visited Mr. Fox and observed him "tied with a [bed] sheet in a chair ..." She further explained

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493 So. 2d 819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgillivray-v-rapides-iberia-management-ent-lactapp-1986.