Augustine Penalver, Individually and as Independent Executor of the Estate of Maria Belia Penalver, Deceased, and Ramon Penalver, (APPELLANTS/CROSS-APPELLEES) v. Living Centers of Texas, Inc., Cyndi Brown, LNFA, and Kimberly Bordovsky, DON, (APPELLEES/CROSS-APPELLANTS)--Appeal from Probate Court No 2 of Bexar County

MEMORANDUM OPINION
No. 04-02-00920-CV
Augustine PE ALVER, Individually and
as Independent Executor of the Estate of Maria Belia Pe alver, Deceased,
and Ramon Pe alver,
Appellants/Cross-Appellees
v.
LIVING CENTERS OF TEXAS, INC.,
Cyndi Brown, LNFA, and Kimberly Bordovsky, DON,
Appellees/Cross-Appellants
From the Probate Court No. 2, Bexar County, Texas
Trial Court No. 2001-PC-0706
Honorable Tom Rickhoff, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: June 23, 2004

REVERSED AND REMANDED

Ramon Pe alver and Augustine Pe alver, individually and as independent executor of the estate of Maria Belia Pe alver, appeal the trial court's directed verdict on their claims against Living Centers of Texas, Inc. d/b/a/ Silver Creek Nursing Home for common law fraud and intentional injury to an elderly person under section 22.04 of the Texas Penal Code. We do not address these issues because the judgment must be reversed and the cause remanded on an issue raised in Living Centers' cross-appeal. We hold the trial court reversibly erred in admitting evidence of 800 previous "falls" at Silver Creek without an adequate predicate.

Factual and Procedural Background

In 1997, Ramon and Augustine Pe alver placed their mother Belia in one of Living Centers' nursing homes, Silver Creek. In September 2000, Belia's care plan dictated that she was a two-person transfer, meaning that she required two people to transfer her from a wheelchair to her bed. For the transfer of a dependent resident, like Belia, Silver Creek's safety rules required the use of a gait belt.

In September 2000, as Belia was being transferred from a wheelchair to her bed, she was "dropped" by Christeena Barteck, the certified nurses aide assisting her. Belia died the next day. The medical examiner ruled the death accidental, caused by trauma from the fall. After Belia's death, Ramon Pe alver and Augustine Pe alver, individually and as executor of his mother's estate, filed this wrongful death and survival suit against Living Centers of Texas, Inc. d/b/a Silver Creek Nursing Home; Silver Creek's administrator, Cyndi Brown; and Silver Creek's director of nursing, Kim Bordovsky. The Pe alvers alleged that the defendants' negligence and gross negligence caused Belia's injuries and death. The Pe alvers also alleged Living Centers committed fraud and violated section 22.04 of the Texas Penal Code.

After the Pe alvers rested, the trial court instructed a verdict against them on their fraud and section 22.04 claims. The jury found in favor of the Pe alvers on their negligence claim, apportioning 50% of the fault to Living Centers, 25% to Brown, and 25% to Bordovsky and finding actual damages of $356,000. The jury also found Living Centers acted with malice and that $500,000 in exemplary damages should be assessed and divided equally between Augustine and Ramon Pe alver. The trial court rendered judgment in favor of the Pe alvers on the jury's liability and actual damages findings and, in accordance with its directed verdict on their section 22.04 claim, applied the punitive damage cap found in section 41.008 of the Texas Civil Practice and Remedies Code to reduce the jury's punitive damage award to $362,000.

Brown and Bordovsky

Brown and Bordovsky argue the trial court erred in rendering a judgment against them, because there is legally and factually insufficient evidence that an alleged act of negligence on either of their parts proximately caused the occurrence. We disagree that the evidence is legally insufficient and, since we reverse and remand on another ground, do not address the factual sufficiency argument.

"The two elements of proximate cause are cause in fact and foreseeability." Nixon v. Mr. Prop. Mgmt., Inc., 690 S.W.2d 546, 549 (Tex. 1985). "Cause in fact denotes that the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred." Id. "Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others." Id. at 549-50.

It is undisputed that neither Brown nor Bordovsky was involved in Barteck's attempted transfer of Belia. Brown was in Dallas on the day of the accident, while Bordovsky was pregnant and consequently unable to assist in the transfer. Neither Brown nor Bordovsky directed or authorized Barteck to transfer Belia alone and without a gait belt; indeed, neither had personal knowledge that the transfer was taking place. However, Belia's care plan plainly disclosed that she was a two-person transfer; and, according to Brown, a certified nurse assistant like Barteck is responsible for reviewing residents' care plans. Brown agreed that, if Barteck had read Belia's care plan, she would have known that Belia was a two-person transfer; Barteck would have sought and received assistance; and the accident would have been prevented. It was undisputed at trial, however, that at no time before the accident did Barteck review Belia's care plan. In short, it was undisputed at trial that Barteck's failure to read Belia's care plan was a proximate cause of the accident. The question thus becomes why Barteck failed to read Belia's care plan.

Barteck testified both that she did have time to review the chart and that she did not. Accordingly, the jury was entitled to conclude that Barteck did not read Belia's care plan because she did not have time. The jury was also entitled to conclude that Barteck did not have time because Silver Creek was understaffed. Belia was classified as an SE3 pursuant to Medicare guidelines; therefore, in any given twenty-four hour period of time, Belia should have received 191 minutes of certified nurse assistant care. However, Brown, in consultation with Bordovsky, staffed Silver Creek to allow only 105 minutes of certified nurse assistant care for the same period of time. And, on the day of Belia's accident, the actual certified nurse assistant time available for each resident was substantially less. Two of the certified nurse assistants scheduled to work the shift during which the accident occurred were absent; and no steps were taken to obtain replacements either from the off-duty personnel at Silver Creek, the personnel at Silver Creek's four sister facilities in the area, or the personnel available from an outside agency. We hold this evidence is more than a scintilla of evidence to support the jury's finding that Brown's and Bordovsky's staffing decisions were in part responsible for the accident.

New and Independent Cause

Living Centers argues that the undisputed failure of Belia's daughter-in-law Sofia, who was in the room during the transfer, "to speak up and stop the improper transfer from occurring when she had an opportunity and obligation to do so and the unforeseeable movement of the wheelchair that stripped Barteck of her safety net defeat proximate cause as a matter of law." We disagree.

As the jury in this case was instructed, "[a] new and independent cause is an act or omission by a separate and independent agency that is not reasonably foreseeable and that destroys the causal connection between a defendant's negligence and the accident, the new and independent cause becomes the immediate cause of the accident." Crown Derrick Erectors, Inc. v. Dew, 117 S.W.3d 526, 535 (Tex. App.- Beaumont 2003, pet. filed). "If the jury determines the defendant reasonably could have foreseen the intervening event, the event is not considered a new and independent cause that breaks the chain of causation." Id. (citing Phan Son Van v. Pena, 990 S.W.2d 751, 754 (Tex. 1999)).

The evidence does not conclusively establish that Living Centers could not reasonably have foreseen a family member's failure to correct a certified nurse aide's improper transfer method or the unexplained movement of a wheelchair. Moreover, as the Pe alvers point out, the effects of Living Centers' negligence actively and continuously operated to bring about the fall; therefore, whether other acts and omissions were also factors in bringing about the harm does not shield Living Centers from liability. See McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442, 447 (1941). We therefore hold the evidence does not establish as a matter of law that Sofia's failure to speak up or the movement of the wheelchair was a new and independent cause of Belia's accident.

800 Other Falls

Living Centers argues the trial court abused its discretion in admitting evidence of the approximately 800 previous "falls" documented in Silver Creek's unusual incident reports for the two years preceding Belia's accident, because the Pe alvers made no showing that the previous "falls" occurred under circumstances reasonably similar to those surrounding Belia's fall. We agree.

"Evidence of earlier accidents that occurred under reasonably similar but not necessarily identical circumstances is admissible." Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 341 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). "Reasonably similar circumstances generally means the same type of occurrence." Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 201 (Tex. App.-Texarkana 2000, pet. denied). The burden to produce competent evidence of similarity is on the offering party. Id. If the offering party fails to meet this threshold burden, the evidence is not relevant. See id. at 202.

Over Living Centers' objection, the Pe alvers questioned Cyndi Brown regarding Silver Creek's unusual incident reports for the two years preceding Belia's fall. According to Brown, the unusual incident reports reflected 800 previous incidents. Not all of the previous incidents were falls, however; and those that did involve falls defied a showing that they occurred under reasonably similar circumstances since residents fell for a variety of reasons. The Pe alvers argue the evidence establishes reasonable similarity because all the prior incidents involved patients, occurred inside the facility, and were classified as "falls" by the administrator. However, the "type of occurrence" involved here was not simply a patient who suffered what an administrator might classify as a "fall" inside the facility. The "type of occurrence" involved here was a patient falling during a transfer performed without adherence to required safety procedures; and the Pe alvers made no effort to show that this type of occurrence was involved in any of the 800 previous "falls." We therefore hold the trial court erred in admitting evidence of the 800 previous "falls."

"To reverse a judgment based upon erroneously admitted evidence, the complaining party must show that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment or was such that it prevented the complaining party from making a proper presentation of the case to the appellate court." Uniroyal, 977 S.W.2d at 340. As discussed above, the basis upon which the jury could have found Brown and Bordovsky negligent was the understaffing that arguably explained Barteck's failure to review Belia's care plan and for which Brown and Bordovsky were in part responsible. We are unable to say that, without the improperly admitted evidence of the 800 previous "falls," the jury would have found that Brown's and Bordovsky's negligence was a proximate cause of the accident. We therefore hold the trial court's admission of the evidence of the 800 previous "falls" was reversible error as to Brown and Bordovsky. Because the judgment must be reversed as to Brown and Bordovsky, we have no choice but to reverse the judgment against Living Centers. See, e.g., Bay, Inc. v. Ramos, No. 04-02-00196-CV, 2004 WL 572309, at *7 (Tex. App.-San Antonio Mar. 24, 2004, no pet. h.) (holding evidence was factually insufficient to support jury's finding that one plaintiff was not contributorily negligent but reversing judgment in favor of both plaintiffs because of proportionate responsibility finding).

Punitive Damages

Having determined that the judgment must be reversed and the cause remanded for a new trial, we have resolved all issues necessary to the disposition of this appeal. See Tex. R. App. P. 47.1. However, we deem it advisable to address an issue that will undoubtedly confront the trial court on remand and upon which the evidence is not subject to change - whether Living Center's Plan of Reorganization precludes the Pe alvers' pursuit of their claim against Living Centers for punitive damages.

Living Centers filed a voluntary petition for bankruptcy on January 18, 2000. In its confirmed Plan of Reorganization, which became effective May 13, 2002, "personal injury claims arising from acts and omissions after the Petition Date" of January 18, 2000 - such as the Pe alvers' claims arising out of Belia's death in September 2000 - are classified as Administrative Expenses. When the Plan became effective on May 13, 2002, Living Centers was "deemed discharged and released to the fullest extent permitted by section 1141 of the Bankruptcy Code from all Administrative Expenses, ..., including but not limited to ... Administrative Expenses ... that arose before the Confirmation Date" on May 13, 2002, unless the Plan provides otherwise. Pursuant to the Plan, "[n]o Administrative Expense shall receive a distribution under this Plan except to the extent that it is an Allowed Administrative Expense"; and "in no event shall an Allowed Administrative Expense include non-compensatory ... punitive damages ...." Thus, since only Allowed Administrative Expenses may receive a distribution under the Plan, and an Allowed Administrative Expense cannot include punitive damages, a liquidated claim for punitive damages cannot receive a distribution and is discharged under the Plan.

Citing 28 U.S.C. 157(b)(5), the Pe alvers argue the bankruptcy court has no jurisdiction over their punitive damage claim because it arose after Living Centers filed its bankruptcy petition on January 18, 2000. However, section 157(b)(5) deals with the power of federal district courts to try pre- and post-petition personal injury lawsuits; it does not speak to the bankruptcy court's jurisdiction to discharge punitive damage claims. See 28 U.S.C. 157(b)(5) (West 1993). In accordance with the Plan, we hold the Pe alvers are precluded from pursuing their claim against Living Centers for punitive damages.

Conclusion

Because the trial court reversibly erred in admitting evidence of the 800 previous "falls" at Silver Creek Nursing Home, we reverse the trial court's judgment and remand the cause for a new trial.

Sarah B. Duncan, Justice