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Manhattan Nursing & Rehabilitation Center., LLC v. Pace

Court of Appeals of Mississippi

March 25, 2014

MANHATTAN NURSING & REHABILITATION CENTER, LLC, APPELLANT/CROSS-APPELLEE
v.
BRIDGET PACE, INDIVIDUALLY, AND LILLIE DAVIS MCGEE BUTLER, INDIVIDUALLY, AND AS CO-EXECUTRICES FOR THE ESTATE OF MABLE J. ALLEN AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF MABLE J. ALLEN, DECEASED, APPELLEES/CROSS-APPELLANTS

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/14/2011. TRIAL JUDGE: HON. TOMIE T. GREEN. TRIAL COURT JURY AWARDED $1,200,000 IN NONECONOMIC DAMAGES TO APPELLEES, AND $13,300 IN ECONOMIC DAMAGES; TRIAL COURT REDUCED AWARD TO $513,300.

DISPOSITION: REVERSED AND REMANDED.

FOR APPELLANT: W. DAVIS FRYE, BARRY W. FORD, BRADLEY C. MOODY.

FOR APPELLEES: JAMES H. THIGPEN, OMAR L. NELSON.

BEFORE GRIFFIS, P.J., BARNES AND ISHEE, JJ.

OPINION

Page 811

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH

BARNES, J.

¶1. In this wrongful-death action, Plaintiffs claim that Manhattan Nursing & Rehabilitation Center (Manhattan) caused Mable Allen's death by allowing Allen to become severely dehydrated at the nursing home.[1] Plaintiffs' theory at trial was that Allen was in such poor condition as a result of Manhattan's negligence, nothing could be done to counteract her dehydration when she was transferred to the University of Mississippi Medical Center (UMC). After a four-day trial in the Hinds County Circuit Court, the jury returned a $1,213,300 verdict against Manhattan. The verdict was later reduced to $513,300.[2]

¶2. Manhattan appeals the jury verdict, raising the following issues: (1) the trial court erred in excluding evidence about the decision made by Allen's family to withhold medical treatment at the hospital, and this evidence was relevant to the proximate cause of Allen's death, since it was an intervening, superseding cause, and it was relevant to the mitigation of damages;

Page 812

(2) Manhattan was denied a substantial right when the trial court prevented Manhattan from impeaching Plaintiffs about decisions they made to withhold medical treatment from Allen at the hospital after Plaintiffs testified on direct examination that " there were no decisions" to be made concerning Allen's medical treatment; (3) the trial court erred in preventing Manhattan from questioning Allen's physician expert about a medical record signed by Allen's treating physician that directly related to the proximate cause of Allen's death and the mitigation of damages, and another medical record signed by Allen's treating physician that contradicted the opinions of Allen's expert; (4) the trial court erred when it allowed Plaintiffs to testify about out-of-court hearsay statements allegedly made by Allen's physicians; (5) the trial court erred by striking two jurors " for cause" who stated they would be impartial; (6) the trial court erred by overruling Manhattan's Batson [3] challenges; (7) the evidence was overwhelmingly in favor of Manhattan; and (8) the trial court erred in allowing the jury to consider damages for Allen's pain and suffering when there was no evidence of such. Finding reversible error with the trial court's exclusion of certain evidence relating to the Allen family's decision to withhold medical treatment while at UMC and the admission of hearsay testimony, we reverse and remand for a new trial.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶3. Allen was a resident of Manhattan, located in Jackson, Mississippi, for over seven years - from July 17, 2001, until November 16, 2008. When Allen was admitted to the nursing home, she was seventy-six years old, and when she passed away on November 18, 2008, she was eighty-four years old.

¶4. Her treating physician, Dr. Cassandra Thomas, had originally recommended Allen go to the nursing home for six months to get her diabetes under control and for post-spinal surgery strengthening. At the time of admission, Dr. Thomas had also diagnosed Allen with dementia.

¶5. In February 2006, Dr. Thomas diagnosed Allen with advanced dementia, and in July 2006, with end-stage dementia. In July 2007, Allen had an episode of hypoglycemia and dehydration related to her diabetes. She was admitted to a local hospital, where she received intravenous fluids. Allen was released two days later.[4]

¶6. By 2008, Allen could no longer walk, communicate, feed herself, or control her bowels or bladder due to her progressive dementia.[5] She was a " total care" resident of Manhattan. The events at issue in this case began on Saturday, November 15, 2008. Tori Hinton, a licensed practical nurse at Manhattan who cared for Allen on a regular basis, testified that Allen refused to eat breakfast and lunch. Allen also spit out her medications that day. The nursing staff attempted to notify Dr. Thomas several times by pager and telephone call. When they did not receive a response, they contacted the " on-call

Page 813

physician," Dr. Sullivan. He instructed Manhattan to withhold Allen's diabetic medication until she could be evaluated on Monday. Manhattan complied with the physician's order. Allen's vital signs were not taken on this day, as she was not showing any symptoms of low or high blood sugar, or breathing difficulty. Hinton also notified another of Allen's daughters, Butler, who came to the facility and was also unable to get her mother to eat. Hinton stated that Allen did drink two four-ounce " Med Pass" nutritional supplements on November 15, with protein powder added to them. Hinton maintained that when Allen refused food and medication it was not an " emergency situation" ; however, it was unusual, because Allen was normally a " good eater."

¶7. The next day, Allen again spit out her breakfast and medications. She also refused lunch. Allen, however, did not appear to be in any distress. Again, the family was called, and Butler arrived at Manhattan. Butler testified she found her mother slumped in her geri-chair, and it looked like someone had " cut mama" on the neck, because there was a " big gash" on her neck, and " her head [was] just wobbling." Butler became " hysterical" and called her sister, Pace, and her niece. In response to Butler's hysteria, Hinton paged Linda Owens, a registered nurse at Manhattan. When Owens arrived in Allen's room, she found Allen had a rash of unbroken skin that had developed in a crease of Allen's neck. An assistant nurse said she had noticed the rash that morning, after Allen had been bathed and put in the geri-chair. Even so, Pace demanded that 9-1-1 be called and Allen transferred to UMC. Manhattan complied, calling an ambulance. Hinton and Owens testified that Allen was not in any distress at the time, nor did she appear dehydrated.

¶8. When the emergency medical technicians arrived at the nursing home, they found Allen's vital signs (blood pressure, pulse, and respiration) were within normal limits. Therefore, the EMTs did not administer IV fluids to Allen on the way to the hospital. The ambulance report indicated that Allen was in no acute distress while being transferred to UMC. Upon arrival at the UMC emergency room (ER), Allen's chief complaints were the neck rash and " difficulty feeding." Medical records show one of Allen's daughters provided her history: Allen is normally not very responsive and has seemed " slightly less alert than usual." It was noted Allen has dementia and " complete aphasia," or cannot speak. Her vital signs were " baseline." An ER physician found Allen was in " no acute distress" and responded only to deep pain. The ER made an initial assessment of " dehydration, hyperglycemia, and thrombocytopenia." [6] Thus, IV fluids were administered. An ER admission/transfer order stated Allen was diagnosed with " thrombocytopenia, sepsis, and a UTI."

¶9. Allen's blood pressure began to drop within an hour of arrival at the ER. Allen was admitted to the hospital in critical condition. Numerous medical records show Allen was designated a " Do Not Resuscitate" (DNR) patient, and this status was confirmed by the family; thus, " no invasive procedures or central lines and no 'pressors'" were to be administered.[7] On

Page 814

November 17, Allen's respiratory status worsened, but the family also ...


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