Beverly California Corporation and Beverly Enterprises-Texas, Inc. v. Kelcy Robinson

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-94-00210-CV Beverly California Corporation and Beverly Enterprises-Texas, Inc., Appellants v. Kelcy Robinson, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. 93-02735, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING Kelcy Robinson sued to recover damages for personal injuries she sustained while residing at the "Arbor," a nursing home owned by Beverly Enterprises-Texas, Inc., a subsidiary of Beverly California Corporation. (1) A jury found appellants negligent and grossly negligent and awarded Robinson $120,000 in actual damages and $240,000 in exemplary damages. The trial court rendered judgment in accordance with the jury verdict. We will affirm the trial-court judgment. THE CONTROVERSY Kelcy Robinson entered the Arbor on December 9, 1986. She resided there until February 1993 when her family enrolled her in another nursing facility. By the end of her stay at the Arbor, Robinson had developed senile dementia and urinary and bowel incontinence. She was confined to bed and to a wheelchair while residing at the Arbor. Robinson alleged her injuries were proximately caused by appellants' negligence in failing to: (1) assure that Robinson was supervised and safeguarded to the extent necessary to prevent her from leaving the building and injuring herself; (2) discover that Robinson had left the building until notified by nonemployees; (3) assure that Robinson and her living areas were kept clean on a regular basis; (4) respond timely to call lights or changes in Robinson's condition; (5) care properly for Robinson's skin rash; (6) have sufficient numbers of patient-care employees; and (7) have properly trained patient-care employees. DISCUSSION AND HOLDINGS In their first point of error, appellants complain there was no evidence and, alternatively, factually insufficient evidence, to support the jury's answers regarding gross negligence and punitive damages. Appellants do not dispute the jury's findings of negligence; they claim instead that the evidence did not show their negligence amounted to the conscious indifference necessary to justify the punitive-damage award. "`Gross negligence' means more than momentary thoughtlessness, inadvertence, or error in judgment. It means such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected." Tex. Civ. Prac. & Rem. Code Ann. § 41.001(5) (West Supp. 1995); see also Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 21 (Tex. 1994). In Moriel, the supreme court reiterated that gross negligence is comprised of objective and subjective elements. Moriel, 879 S.W.2d at 21-22. Objectively, a defendant's acts or omissions must present an "extreme degree of risk"; subjectively, a "defendant must have an actual awareness of the extreme risk created by his or her conduct." Id. at 22; see also Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 327 (Tex. 1993). Therefore, under the gross-negligence definition, appellants cannot be liable for exemplary damages unless a preponderance of the evidence showed that their acts or omissions posed an extreme degree of risk to Robinson and that appellants actually knew of such risk. (2) Because of the difficulty of producing direct evidence of a defendant's mental state, circumstantial evidence may be used to prove the defendant's knowledge of an extreme risk. Moriel, 879 S.W.2d at 23 (reaffirming Williams v. Steves Indus., Inc., 699 S.W.2d 570, 574 (Tex. 1985)). If the evidence is sufficient to show appellants knew their acts or omissions were likely to cause serious harm, but nevertheless continued in their course of conduct in conscious indifference to Robinson's rights, safety, and welfare, the punitive damages award must be affirmed. See Moriel, 879 S.W.2d at 23. We are constrained in reviewing no-evidence points to consider only the evidence and inferences that tend to support the findings and disregard all the evidence and inferences to the contrary. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). See generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515 (1991). If there is any evidence to support the finding the point must be overruled and the finding upheld. In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). We shall summarize such supporting evidence. One of Robinson's primary complaints was that the Arbor was insufficiently staffed and therefore could not adequately care for residents. The evidence supporting the judgment shows that several nurses complained the facility was insufficiently staffed. Donna Carter, a licensed vocational nurse at the Arbor from 1991 until December 1992, testified there would be typically three or four staff members caring for 100 to 120 residents during the night shift. After attending to her nursing duties, Carter and the other staff members did not have enough time to answer the residents' call lights which indicated a patient required assistance. Patients often complained that it took more than an hour for staff to answer their call lights. Although the nurses and staff were supposed to make four rounds during each eight-hour shift, they often had time to make only two or three rounds. Incontinent residents were, as a result, required sometimes to sit or lie in their own urine and feces for up to two hours. Carter told Mary Batton, the Director of Nurses, that she was afraid of losing her nursing license because there was not enough staff to care for the residents. Carter also stated that Batton would forewarn the Arbor employees when a Texas Department of Health ("TDH") inspection was due and that employees were only allowed to work overtime when the health inspectors' visits were imminent. When Carter asked to work overtime after an inspection, Batton and Shelley Thomas, administrator of the Arbor, told Carter she could not because the facility was "over-budget." Cynthia Jones, a nurse at the Arbor from May 1992 through April 1993, stated that when she complained about inadequate staffing she was told that even further staff cuts were necessary because "corporate" thought the Arbor was spending too much money on staff. Barbara Johnson, who worked as a nurse and as part of management from 1990 until 1993, stated that Thomas informed her that "corporate" was pressuring management to further reduce the staff and number of overtime hours worked; however, management was not to mention this to staff members. In addition to inadequate staffing, Robinson complained of improper nursing care. Robinson's medical charts showed she never received two successive treatments prescribed by Dr. George Robison, the Arbor's medical director, for a skin rash he attributed to scabies. (3) Nurses Carter and Cynthia Stewart Bell testified that Robinson continually "clawed" at herself because of the constant itching caused by the rash. Shortly after leaving the Arbor in February 1993, Robinson was again diagnosed with scabies. She received appropriate treatment and her skin rash quickly disappeared. Edith McIlvain and Dyanna Robinson, Robinson's relatives, stated they frequently found Robinson soaked with urine and with dried feces on her body and on the walls of her bedroom and bathroom. It appeared to them that the dried feces were not the result of a recent incident but had been there a long time. A TDH inspection survey dated February 10, 1993, supported their claims of a want of sanitation. The survey stated that Robinson's room had a "pervasive urine odor." (4) The jury's finding of gross negligence is also supported by evidence of Robinson's frequent falls and attempts to escape. The Arbor was aware of the problem and had discussed it in Robinson's "care plan" meetings. Robinson had fallen thirty times and escaped the facility eleven times in the eight-month period before she was removed from the Arbor. One escape occurred on October 21, 1992, when Robinson left The Arbor unnoticed and wheeled herself down Duval Road to a hamburger restaurant located at the intersection of Highway 183 and Duval Road. Robinson was returned to the Arbor before Marjorie Townsend, the nurse in charge of her care, realized she was missing. Robinson's last escape from the Arbor occurred on February 2, 1993. Robinson left the facility in her wheelchair and fell down a flight of concrete steps. Ella Atwood, while visiting her mother at the Arbor, found Robinson lying on a concrete sidewalk at the bottom of the steps with a pool of blood around her head. Atwood sent her grandson inside the facility to inform the nursing staff that one of the residents had been injured. The door through which Robinson left was equipped with an alarm that sounded when the door opened. The alarm may only be turned off with a key available solely to supervisory employees. Someone turning off the alarm would have been able to see Robinson lying on the sidewalk if they had opened the door, before turning off the alarm, to make sure no one had escaped from the building. We conclude the foregoing evidence is legally sufficient to support the jury's finding of gross negligence. Evidence of insufficient staffing, inadequate hygiene, and inadequate supervision constituted an extreme degree of risk to Robinson's health, safety, and welfare. The evidence also showed the Arbor was aware of the extreme risk created by their conduct. Appellants concede they were aware of Robinson's propensity for accidents, i.e., falls and wandering. They dispute, however, that they were consciously indifferent to this risk. Evidence showing that the Arbor failed consistently to maintain sanitation, to supply a prescribed treatment, to secure Robinson's person by preventing her escapes, and to determine whether any patient had escaped after being alerted by the door alarm on February 2, 1993, was in our view legally sufficient evidence of conscious indifference. We overrule appellants' legal-sufficiency challenge. In reviewing the evidence for factual insufficiency, we must consider the entire record and analyze the evidence in support of and against the judgment. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We may not substitute our own judgment for the jury's, but must "determine whether the evidence is so one-sided that the verdict will not be allowed to stand." Powers & Ratliff, supra, at 525. We may set aside the judgment "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see also In re King's Estate, 244 S.W.2d at 661. In addition to the evidence discussed above in support of the trial court's judgment, the record reveals the following. Quarterly care-plan meetings were conducted to discuss Robinson's needs and treatments. These meetings were attended by a dietician, nurse, social worker, recreational director, and Robinson's physician. Robinson's family members were invited to participate. Solutions proposed at these meetings included closer supervision by the staff, use of a "wanderguard," (5) use of an alarm system on other doors, and further use of Robinson's call light. However, Robinson's daughter stated the care-plan meetings were only a "paper exercise" to satisfy state licensing requirements; the meetings had no resulting effect on Robinson's care and treatment. A staff member suggested that Robinson be moved to a room closer to the nurses' station. Robinson's family rejected this suggestion, however, because Robinson's roommate looked after Robinson and "screamed and hollered" to get the staff's attention when Robinson needed help. Robinson's daughter also stated she mistakenly thought the proposed new room was about the same distance away from the nurses' station as Robinson's old room. Townsend, the charge nurse on February 2, 1993, the day of Robinson's last escape, testified she did not remember hearing the alarm sound before Atwood's grandson informed her of Robinson's accident, did not deactivate the alarm, and did not know of any other charge nurse on duty who turned off the door alarm. Kyle Arthur, a nurse's aide, testified he heard the alarm sounding approximately fifteen minutes after he saw Robinson leave the dining room. Arthur testified further, however, that the staff had already gone to help Robinson when he first heard the alarm and the alarm may have been triggered by a staff member going outside to help after Atwood's grandson informed the Arbor of Robinson's injuries. The evidence also showed that the Arbor dedicated approximately 2.8 hours of nursing care per patient per day--a figure higher than the industry average of 2.3 hours. (6) Cynthia Stewart, a nurse's aide, and nurse Townsend testified that the Arbor was always fully staffed. TDH recommends that nursing home rounds be made at least every two hours; however, Mary Batton, the Arbor's director of nurses, encouraged her staff to "round" every hour to one and one-half hours whenever possible. As previously discussed, nurse Carter stated she frequently only had time to make two or three rounds in an eight-hour period. Appellants, in support of their position that Robinson received proper nursing care, assert that Robinson did not suffer from skin breakdown due to incontinence. Robinson did suffer from a small stage-two (skin involvement only) pressure sore that healed in about two weeks. Dr. Ivo Abraham, appellants' expert witness, testified that the fact that the pressure sore healed quickly showed in his opinion that Robinson received good nursing care. Theresa de Venecia Centeno, a TDH employee who investigated Robinson's February 2, 1993 accident, interviewed eight residents and found the facility to be clean. De Venecia Centeno also testified that she had previously cited The Arbor for health violations. She further stated that she "did not find the facility negligent at that time within the scope that I looked at." Dr. Robison also testified he believed the Arbor rendered proper care and was not negligent. Appellants also point out that they recruited and hired qualified people, such as Thomas and Batton, to correct deficiencies found by TDH in 1989 inspections. Batton's tenure coincided with an increase in the number of staff members and in the budget. Additionally, the number of nursing hours per patient per day was increased from 2.5 to 2.8. Through appellants' efforts, the Arbor's record with the TDH improved and the facility was not cited for insufficient staff in 1992. With regard to Robinson's allegations of improper treatment, appellants introduced evidence that Robinson's roommate was given the scabies treatment and that customarily the Arbor administered scabies treatments to roommates at the same time. In purported contradiction to testimony that Robinson was constantly scratching her skin rash, appellants argue that Robinson's medical chart showed only eight entries of itching complaints in five and one-half months. Dr. Bennett, Robinson's physician after she left the Arbor, successfully treated Robinson's skin rash with Kwell, a scabies medication, but he simultaneously eliminated her blood-pressure medicine. Although Dr. Bennett testified he believed the rash to be scabies, he could not rule out completely the possibility that the rash had been caused by the blood-pressure medicine. Taking into account the whole of the evidence, we cannot conclude the jury's verdict was so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Cain, 709 S.W.2d at 176; In re King's Estate, 244 S.W.2d at 661.In addition to evidence that a staff member turned off the door alarm without checking to see if anyone needed assistance, the facility did not assure that Robinson had received her prescribed scabies treatments even though the staff knew she was constantly suffering from the rash. The evidence further showed, if believed, that the Arbor manipulated the number of staff on hand depending on whether a health inspection was imminent. Robinson's numerous escapes were undisputed--eleven escapes in eight months is a lot. We overrule appellants' first point of error. In their second point of error, appellants complain the trial court committed reversible error by allowing Robinson to refer to the net worth of Beverly Enterprises, Inc., a corporation not named as a defendant, when no evidence was admitted regarding its net worth. Robinson's counsel referred to the net worth of Beverly Enterprises, Inc. six times throughout trial, arguing that because Beverly Enterprises-Texas, Inc. and Beverly California Corporation are wholly owned subsidiaries of Beverly Enterprises, Inc., the net worth of Beverly Enterprises, Inc. was relevant to the issue of exemplary damages. Robinson asserts appellants waived the error, if any, by failing to object consistently and in a timely fashion and invited error through their own argument. See Chevron U.S.A. Inc. v. Lara, 786 S.W.2d 48, 51-52 (Tex. App.--El Paso 1990, writ denied) (error waived if evidence comes in without objection even though objection to similar question was previously made); Southwest Inns, Ltd. v. General Elec. Co., 744 S.W.2d 258, 266 (Tex. App.--Houston [14th Dist.] 1987, writ denied) ("Appellants are in no position to complain of the action of the court in overruling their objection to argument when similar argument was made to which there was no objection."). We agree error was waived. One instance of waiver occurred upon redirect examination of McIlvain: [Q]: Is it your position in this case that a corporation with a net worth of $600 million ought to be able to provide more staff to take care of their patients? [A]: Yes. [Robinson's counsel]: I'll pass the witness. [Appellants' counsel]: I don't have anything else. [The court]: All right. You may step down, ma'am. The judge then dismissed the jury for morning recess at which time appellants' counsel objected stating, "I didn't get my objection in this time, but I don't think that's proper." Ordinarily, an objection is untimely if it is made after the answer is given. Top Value Enters., Inc. v. Carlson Mktg. Group, Inc., 703 S.W.2d 806, 811 (Tex. App.--El Paso 1986, writ ref'd n.r.e.). The court sustained appellants' objection on the grounds that the question was not stated in proper form because counsel did not ask the witness to assume a net worth of $600 million, and reserved for later the question of whether the net worth of the parent corporation was admissible. No motion to strike was made. See Poole v. State Highway Dep't, 256 S.W.2d 168, 171 (Tex. Civ. App.--Fort Worth 1953, writ dism'd) (jurors may consider testimony until party moves to strike). Appellants did not obtain a ruling on what they now complain of on appeal. Timely objections were made to three references to net worth. Appellants point to several cases for the proposition that once an objection is made, subsequent objections are unnecessary to preserve error. Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236 (Tex. App.--Corpus Christi 1994, writ denied), states the general rule that "prior or subsequent presentation of essentially the same evidence without objection waives error." Id. at 242. However, the court also states that a party is "entitled to assume that the judge will make the same ruling as to other offers of similar evidence" and therefore repeating the objection is not always necessary. Id. (citing D.L.N. v. State, 590 S.W.2d 820, 823 (Tex. Civ. App.--Dallas 1979, no writ); Price v. Gulf Atl. Life Ins. Co., 621 S.W.2d 185, 188 (Tex. Civ. App.--Texarkana 1981, writ ref'd n.r.e.); Estate of Brown v. MASCO Corp., 576 S.W.2d 105, 107 (Tex. Civ. App.--Beaumont 1978, writ ref'd n.r.e.); Crispi v. Emmott, 337 S.W.2d 314, 318 (Tex. Civ. App.--Houston 1960, no writ)). The Albrecht court concluded that the determination of the sufficiency of a previous objection to encompass a subsequent offer of similar evidence must be made on a case-by-case basis after considering the following factors: (1) the proximity of the objection to the subsequent testimony, (2) which party solicited the subsequent testimony, (3) the nature and similarity of the subsequent testimony as compared to the prior testimony and objection, (4) whether the testimony has been elicited from the same witness, (5) whether a running objection has been requested or granted, and (6) any other circumstances that might suggest why the objection should not have to be reurged. Albrecht, 878 S.W.2d at 243. Based on the foregoing factors, we conclude error was waived during the evidence portion of the trial and closing argument. The cases holding that a party making a proper objection to the introduction of testimony, which objection is overruled, may assume the judge will make a similar ruling to an offer of similar evidence, thus obviating the need for counsel to repeat the objection, are limited primarily to instances where similar evidence is elicited immediately from the same witness or where the judge expressly grants a running objection. City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex. App.--Fort Worth 1988, writ denied). In the present case, defense counsel failed to make a timely objection to McIlvain's testimony regarding net worth. No running objection was requested by counsel, no similar objection was previously made to McIlvain's testimony, and McIlvain's testimony was not close in proximity to a previous objection. All of these factors weigh in favor of the general rule that timely objections must be made to preserve error. Appellants' argument of prejudice is further diminished by their counsel's reference to the net worth of Beverly Enterprises, Inc. in his own final argument: [T]hey want to create the image of some big, profit corporation sucking up profits out of a nursing home, and not providing enough staff to take care of the residents, which is absolutely false. There is no evidence of understaffing for profit at all. All the evidence, in fact, is to the contrary. During 1989, 1990, and 1991 this facility lost over a million dollars a year. . . . They're currently losing $30,000 a month out there, $360,000 a year. If this corporation was out for profit only, they would have closed this facility years ago. . . . There is no evidence of any corporate profit taking at all. These figures thrown around have to do with a corporation that's not even a defendant in this case. And also notice that he mention assets. He doesn't talk about losses. There's no profit/loss statement in evidence. If their other facilities perform like this one in terms of profit and loss, they don't make much money. Finally, Robinson's counsel in closing argument rebutted appellants' statement that the $593 million dollar figure did not include losses: [Robinson's counsel]: He says that the $593 million figure is assets only and that's unfair. Folks, that's net worth. [Appellants' counsel]: Your Honor, I'm going to object. That's not in evidence. [Robinson's counsel]: I'm sorry, Your Honor, I believe it is in evidence, and I'm entitled to argue what net worth is since he said what he thought it is. [Appellants' counsel]: It's not even a corporation in this case and that figure is not in evidence. [The court]: The objection is overruled. [Robinson's counsel]: Net worth, folks, that should pile up all your assets on one side and you pile up all your liabilities on the other side and the difference between the two is $593 million. Okay. Some of us may have some assets, but when you look at our net worth, it's [sic] pretty well zippity doo dah. But these folks have $593 million more in assets than they do in liabilities, not what [Appellants' counsel] was trying to tell you. The rebuttal to appellants' counsel's statement that the net worth figure referred only to assets was invited and was not harmful. See Texas Gen. Indem. Co. v. Moreno, 638 S.W.2d 908, 913 (Tex. App.--Houston [1st Dist.] 1982, no writ). With regard to improper jury arguments, an appellant must prove: (1) an error (2) that was not invited or provoked, (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial, and (4) that was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge. 3 Texas Civil Practice § 23.23, at 357 (Diane M. Allen et al. eds. 1992 ed.) (quoting Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979)). Moreover, even if error had been properly preserved, we do not believe "the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgment." Tex. R. App. P. 81. The harmless-error discussion in Hoechst Celanese Corp. v. Arthur Bros., Inc., 882 S.W.2d 917, 930 (Tex. App.--Corpus Christi 1994, writ denied), is instructive. As in Hoechst, there is no indication that the net-worth references affected the jury. The jury had heard evidence regarding Beverly Enterprises, Inc.'s size and wealth including testimony that: Beverly Enterprises, Inc. owned 850 nursing homes in the United States, 121 of which were in Texas, and had lost over a million dollars a year in 1989, 1990, and 1991. Furthermore, the jury only awarded $240,000 in punitive damages instead of the $700,000 requested by Robinson. We conclude any error resulting from Robinson's references to the net worth of Beverly Enterprises, Inc. was harmless. We overrule appellants' second point of error and affirm the trial-court judgment. John Powers, Justice Before Justices Powers, Jones and B. A. Smith Affirmed Filed: August 16, 1995 Do Not Publish 1. Beverly Enterprises, Inc., a corporation not named as a defendant in this case, apparently controls Beverly California Corporation. 2. The supreme court in Moriel expressly declined to adopt a "clear and convincing evidence" standard for punitive damages, adhering instead to the preponderance of the evidence standard. 879 S.W.2d at 32. 3. Scabies is a transmissible parasitic skin infection caused by impregnated mites that burrow under the skin and deposit their eggs. The larvae hatch within a few days and congregate around hair follicles. Symptoms include severe skin irritation and intense itching. Treatment entails applying a topical lotion, such as "Kwell," all over the body and leaving it there overnight. In addition, the patient's room and clothing must be disinfected to prevent recurrence. Dr. Robison's first test for scabies was negative; however, it is common for tests to be negative even though a patient has scabies. Initially Dr. Robison believed Robinson had scabies; however, he changed his diagnosis when she did not improve after he prescribed Kwell lotion. He was unaware that the prescribed medication apparently had not been administered. 4. Appellants point out that the TDH is required to conduct inspection surveys of nursing homes that participate in the Medical Assistance Program pursuant to licensing standards promulgated in the Administrative Code. See 40 Tex. Admin. Code §§ 19.1-.2107 (1995). Section 19.1(b)(1) provides as follows: These requirements provide the nursing facility with information necessary to fulfill its vendor contract for participation with [the Texas Department of Human Services]. Each facility is required to keep these requirements current. The requirements are the basis for surveys by federal and state surveyors, are part of the vendor contract, and are necessary for the facility to remain in compliance with federal and state laws. Id. § 19.1(b)(1). Appellants assert that because these state regulations impose contractual duties on nursing facilities, and are not intended to create a tort duty between the nursing facility and the individual patient, the inspection surveys are irrelevant for the purposes of this suit. We disagree. Inspection reports introduced into evidence are relevant in conducting a sufficiency-of-the-evidence review, not as to the existence of a duty but as to the breach of a duty of care having a common-law origin. 5. A wanderguard is a device which activates an alarm when the patient attempts to leave the facility. Robinson's wanderguard would only activate when she left the front door. 6. Adherence to industry standards is only one factor to consider in a negligence determination; such evidence does not conclusively establish that the health-care provider fulfilled its duty of care, nor does it preclude a finding of negligence. Hernandez v. Nueces County Medical Soc'y Community Blood Bank, 779 S.W.2d 867, 871 (Tex. App.--Corpus Christi 1989, no writ).