Conley v. Life Care Ctrs. of Am., Inc., 2007 Tenn. App. LEXIS 13 (Tenn. Ct. App. 2007)

Stinson, a 75 year old who was struck by another resident, fell and broke her hip. She died four months later. The resident who struck her, Johnson, had been approved for placement at the nursing home after he was evaluated by the State. Gensis was under contract with Life Care to provide mental health services for residents and those services were provided to both Stinson and the Johnson. Genesis visited Johnson weekly during his 17 month stay at Life Care, at no time recommending that Johnson be discharged or separated from other residents. After Stinson’s death, Plaintiff sued Life Care. After Life Care pled comparative fault, Plaintiff amended her answer to assert claims against Genesis and the State of Tennessee. Prior to trial, the court granted various motions for partial summary judgment and motions in limine. Plaintiff’s claims under OBRA were not allowed as they were premised on a “national standard of care”; claims relating to elopements, deficient psycho-social care and psychotropic medications were found to have nothing to do with the injury; the trial court found that alleged negligent use of psychotropic medical was not supported by the evidence; survey deficiencies were excluded; evidence that Johnson hit other residents after he hit Stinson was not allowed. Evidence of statements indicating the Life Care had notice of Johnson’s conduct prior to striking Stinson was not allowed because Plaintiff could not identify the declarants who made those statements. Prior to trial, the court granted Genesis’ motion for summary judgment. The case then went to trial against Life Care and the jury returned a verdict for Plaintiff of $130,000. Both parties appealed. Regarding the trial court’s refusal to allow the TEPA claim, the court of appeals found that Plaintiff’s failed to state a claim under the Act. Admitting Johnson to the facility did not inflict “physical pain, injury or mental anguish” on Stinson and did not deprive her of any services. The court affirmed the trial court’s decision to leave the State on the jury verdict form even though this created an empty chair since Plaintiff was required to pursue its claim against the State through the claims commission. In affirming the trial court’s grant of partial summary judgment on Plaintiff’s negligence per se claims, the court found that the “federal regulations are simply too vague and general to constitute a standard of care by which a jury, or for that matter a court, can effectively judge the acts or omissions of health care providers and nursing home operators.” The court went further in concluding that claims based on the federal regulations would violate Tennessee’s Medical Malpractice Act by creating a national standard of care. The court of appeals affirmed summary judgment on Stinson’s claims relating to dietary maintenance, toileting, resident assessment activities, grooming, hygiene and care planning because the court determined they were unrelated to the assault. The court reversed summary judgment for Genesis. Life Care had opposed the motion, providing the affidavit of Dr. James Powers who opined that Genesis had a duty to assess Johnson, evaluate whether he was appropriate for admission, advise Life Care if he was not properly admitted, make recommendations for discharge where appropriate and make recommendations concerning whether he was able to interact with other residents. The court found that this affidavit, together with Plaintiff’s experts, created a genuine issue of material fact. The court then vacated the verdict below because both Plaintiff and Life Care were entitled to a new trial where the comparative rights and responsibilities of the parties could be resolved in one action. The court went on to resolve evidentiary issues before it, finding no error in the trial court’s decision to exclude evidence of neglect over a period of months prior to the assault since Plaintiff failed to show how it was related to the assault. Although Life Care objected to Plaintiff’s experts based on the locality rule, the court found no error in allowing them to testify since they were familiar with nursing home protocols in rural communities. Finally, the court concluded that it was not error to grant Plaintiff’s motion in limine to prevent Life Care from introducing Plaintiff’s pleadings regarding the State; although factual allegations may be admitted against a party, the allegations Life Care sought to introduce did not constitute factual statements or admissions of fact. Decided: January 4, 2007.

This decision is troubling on several levels. Although it does not hold expressly that OBRA cannot be used as evidence of the standard of care, the dicta in this decision essentially guts the OBRA regulations by stating they are too vague and general to constitute a standard of care. The recurring flaw in this decision is the court’s refusal to acknowledge that every nursing home that accepts Medicare and/or Medicaid is required to adhere to the same quality of care regulations and that those regulations are clearly not too vague or general to be enforced with monetary sanctions. The other troubling feature of the decision is the court’s failure to recognize harm when substandard care is provided by rejecting all claims that were not tied to the assault. Attorneys for the Plaintiffs have indicated they intend to appeal to the Tennessee Supreme Court.

Opinion at: http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/071/ConleyPOPN.pdf
Prior opinion: http://www.tsc.state.tn.us/opinions/tsc/PDF/043/conleyp.pdf

Note 1: Plaintiffs’ motion to file a second amended complaint and add a count for violation of the Tennessee Adult Protection Act was denied. The trial court found that, as Plaintiffs’ complaint was rooted in medical malpractice, the Medical Malpractice Act was Plaintiff’s exclusive remedy.

Note 2: The court of appeals indicated its agreement that the Medical Malpractice Act was Plaintiff’s only remedy, but in the procedural posture, the court found that it was required to accept Plaintiff’s allegation that a decision to admit Johnson to the facility was “not” a medical decision as true.

Note 3: The court’s logic on the ambiguity of the regulations is flawed. Beyond the fact that other citations appear in this case outline showing that nursing home are frequently fined for violating OBRA regulations and that the surveyor guidelines are specific enough to make it clear what the regulations mean, the Court itself relied on 42 C.F.R. § 483.40 earlier in the opinion to support its conclusion that an admission is a medical decision since that regulation requires a medical recommendation for admission.

Plaintiff’s experts were Dr. Jonathan Klein, Nurse Stephanie Zeman and Nurse Administrator Judy Britt. Regarding Ms. Britt, the court overruled Life Care’s objection because (1) nursing home administrators must be licensed under T.C.A. § 63-16-101 to 115, (2) expert testimony regarding a nursing home administrator must comply with T.C.A. § 63-16-115(b) because the administrator is a person in the healthcare profession requiring licensure and (3) Ms. Britt satisfied the requirement of the locality rule. This is noteworthy because the logic of this decision runs counter to the court’s earlier finding rejecting the OBRA regulations as the standard of care. The reason an out of State expert can testify regarding the standard of care is that every nursing home accepting Medicare and/or Medicaid, nationwide, is required to comply with the same quality of care regulations.