Rose Care, Inc. d/b/a Rose Care Center of Jacksonville v. Emma Coulter, as the Personal Representative of the Estate of James "Rip" Coulter, Deceased

ca03-813

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

ROSE CARE, INC. D/B/A ROSE CARE CENTER OF JACKSONVILLE

APPELLANT

V.

EMMA COULTER, AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES "RIP" COULTER, DECEASED

APPELLEE

CA 03-813

March 24, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CIV 2002-793]

HONORABLE WILLARD PROCTOR,

JUDGE

AFFIRMED

Terry Crabtree, Judge

Rose Care, Inc., d/b/a Rose Care Center of Jacksonville, has appealed from a judgment entered on a jury verdict against it in an action brought by Emma Coulter as the personal representative for the estate of James Coulter, deceased. The two issues in this appeal concern the giving of jury instruction AMI Civil 4th 601 which incorporated certain federal regulations applicable to nursing homes. We find that neither argument was preserved for appeal; therefore, we affirm.

Mr. Coulter was a resident at appellant's nursing home from 1995 until March 2001. He suffered a stroke in November 2000 and was admitted to the hospital for approximately ten days. The stroke left him paralyzed and unable to swallow, and he was fitted with a feeding tube. The stroke also caused his legs to contract, and he developed a pressure sore

on his left heel while he was in the hospital. When he returned to the nursing home, he still had the pressure sore, which worsened significantly, such that his left leg was amputated on January 9, 2003. Appellee subsequently placed Mr. Coulter in another nursing home, where he died several weeks later at the age of eighty-four.

Appellee filed suit against appellant asserting claims based on medical malpractice and common-law negligence. In her complaint, appellee alleged that appellant had breached its duty of care to Mr. Coulter by violating certain laws and regulations, including those promulgated by the Arkansas Department of Human Services' Office of Long-Term Care, and the federal minimum standards imposed upon nursing homes by the United States Department of Health and Human Services. She also alleged that appellant had breached Mr. Coulter's rights guaranteed by the Arkansas Long-Term Care Residents' Rights Act. After a lengthy trial, the jury entered a verdict for appellee in the amount of $250,000, but it denied her claim for punitive damages.

In its first point on appeal, appellant argues that the trial court erred in giving Instruction No. 11 to the jury. Instruction No. 11 incorporated a number of federal regulations promulgated by the United States Department of Health and Human Services to set standards applicable to nursing homes throughout the nation. In terms of background information, in 1987 Congress passed the Federal Nursing Home Reform Act, contained in the Omnibus Budget Reconciliation Act of 1987 (OBRA), 42 U.S.C. §§ 1395i-3, 1396r, which provided for the oversight and inspection of nursing homes that participate in the Medicaid and Medicare programs. See Brogdon v. National Healthcare Corp., 103 F. Supp. 2d 1322, 1323-24 (N.D. Ga. 2000). The law provides for sanctions to enforce compliance, and the enforcement measures are implemented by the Secretary of Health and Human Services and state governments. Id. The OBRA regulations are part of a regulatory scheme to bring long-term facilities into substantial compliance with federal Medicaid and Medicare programs. Tinder v. Lewis County Nursing Home Dist., 207 F. Supp. 2d 951 (E.D. Mo. 2001).

In Arkansas, the violation of statutes or regulations may be considered by a jury as evidence of negligence based on AMI Civil 4th 601. See Jackson v. Cadillac Cowboy, Inc. 337 Ark. 24, 986 S.W.2d 410 (1999) (recognizing, for the first time, a common-law cause of action against a vendor of liquor who knowingly sells alcohol to a minor, and holding that violation of the statute prohibiting such sales to be evidence of negligence); Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997); Amercian Cas. Co. of Reading, PA v. Quitman Sch. Dist., 293 Ark. 457, 739 S.W.2d 144 (1987); Berkeley Pump Co. v. Reed-Johnson Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983); Fidelity-Phenix Ins. Co. v. Lynch, 248 Ark. 923, 455 S.W.2d 79 (1970); Freeman v. Reeves, 241 Ark. 867, 410 S.W.2d 740 (1967);Bussell v. Missouri Pac. R.R. Co., 237 Ark. 812, 376 S.W.2d 545 (1964); Bridgforth v. Vandiver, 225 Ark. 702, 284 S.W.2d 623 (1955);Vann v. Cook, 70 Ark. App. 299, 17 S.W.3d 103 (2000). See also McCorkle Farms, Inc. v. Thompson, 79 Ark. App. 150, 84 S.W.3d 884 (2002) (finding error in the trial court's failure to instruct the jury that violation of Arkansas's Plant Board Pesticide Committee's regulations was evidence of negligence).

Additionally, the violation of federal regulations may be considered evidence of negligence. See Franco v. Bunyard, 261 Ark. 144, 547 S.W.2d 91 (1977) (dealing with violations of federal gun-control law and regulations); Dunn v. Brimer, 259 Ark. 855, 537 S.W.2d 164 (1976) (affirming the trial court's submission of federal safety regulations, issued pursuant to the Occupational Safety and Health Act of 1970); Ratton v. Busby, 230 Ark. 667, 326 S.W.2d 889 (1959) (concerning the rules of the Civil Aeronautics Board published in the Federal Register); C.J. Horner, Inc. v. Moore, 268 Ark. 1019, 597 S.W.2d 857 (Ark. App. 1980) (involving safety and health regulations promulgated pursuant to the Occupational Safety and Health Act of 1970).

Generally speaking, courts have tended to adopt administrative regulations as the standard of conduct less frequently than statutory enactments. 57A Am. Jur. 2d Negligence § 744 (1989). However, for legislative enactments or administrative regulations to be considered evidence of negligence, the Restatement (Second) of Torts § 286 (1965) provides the following analysis:

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part:

(a) to protect a class of persons which includes the one whose interest is invaded; and

(b) to protect the particular interest which is invaded; and

(c) to protect that interest against the kind of harm which has resulted; and

(d) to protect that interest against the particular hazard from which the harm results.

See also 57A Am. Jur. 2d Negligence § 744 (1989).

Instruction No. 11, framed in terms of AMI Civil 4th 601, provided:

At all times material to this case, there were in force in the State of Arkansas regulations providing requirements for nursing homes, which provided:

*The facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life. The facility must promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality. 42 C.F.R. § 483.15(a);

*The facility must provide a safe, clean, comfortable, and homelike environment, allowing the resident to use his or her personal belongings to the extent possible; housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior; and clean bed and bath linens that are in good condition. 42 C.F.R § 483.15(h)(1)(2)(3);

*The facility must develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet the resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment. The care plan must describe the services that are to be furnished to attain or maintain the resident's highest practicable physical, mental and psychosocial well-being as required under § 483.25. 42 C.F.R. § 483.20(k)(1)(i);

*Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. 42 C.F.R. § 483.25;

*Based on the comprehensive assessment of a resident, the facility must ensure that a resident is given the appropriate treatment and services to maintain or improve his or her abilities specified above. 42 C.F.R. § 483.25(a);

*Based on the comprehensive assessment of a resident, the facility must ensure that a resident who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene. 42 C.F.R. § 483.25(a)(1)(2)(3);

*Based on the comprehensive assessment of a resident, the facility must ensure that a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. 42 C.F.R. § 483.25(c)(1)(2);

*Based on a resident's comprehensive assessment, the facility must ensure that a resident maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible. 42 C.F.R. § 483.25(i)(1);

*The facility must provide each resident with sufficient fluid intake to maintain proper hydration and health. 42 C.F.R. § 483.25;

*The facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care. 42 C.F.R. § 483.30(f);

*The facility must ensure that nurse aides are able to demonstrate competency in skills and techniques necessary to care for the resident's needs, such as identified through resident's assessments, and described in the plan of care. 42 C.F.R. § 483.75(f);

*The facility must maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete and accurately documented. 42 C.F.R. § 483.75(1)(1)(i)(ii);

A violation of one or more of these regulations, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.

In this case, appellant contends that the OBRA regulations are not eligible for inclusion in an AMI-601 instruction. Our review of the record convinces us that this precise issue was not raised at trial.

In the complaint, appellee based a claim of negligence on appellant's violation of the federal regulations. Appellee's witnesses, Dr. Jeffrey Levine and dietician Bonnie Lynn Berube, testified, without objection, that the federal regulations set the standard of conduct, and they discussed the regulations in their testimony and related how they were violated with respect to Mr. Coulter. At the jury instruction conference, appellant's attorney objected to the giving of Instruction No. 11 as follows:

I would like to make a record of our objection to the giving of this instruction at all. All of these different CFRs relate to the same conduct that we are talking about in medical negligence. I think the plaintiffs are saying that this statute sets out the standard of care, but that is not the law. We are going to give jury instruction 1501, which addresses medical negligence, and that is what the standard of care is. So we object to giving this instruction at all. If you are going to talk about the Residents' Rights Act, this overlaps with that. For all these reasons, we object to giving the 601 instruction at all. ... It is my understanding that for a 601 instruction there must be a violation of the regulation or statute. It is not a fact finding question for the jury to determine whether it was violated. If there was a federal survey tag given, that's one thing. ... This instruction is 601, and it says at the end a violation is evidence of negligence. So you put in the evidence of the violation. Therefore, for each one of those things, the facility would have to have gotten a tag, and they did not. And, those tags need to be related to the resident.

The gist of appellant's argument at trial was that this instruction was duplicative of other instructions and that the regulations could only be the subject of this instruction if the regulatory agency had issued a "tag" finding that a regulation had been violated. Appellant further stated that "I think the plaintiffs are saying that this statute sets out the standard of care but that is not the law." We do not discern an argument that these particular regulations could not properly be considered as part of a 601 instruction.

Rule 51 of the Arkansas Rules of Civil Procedure provides that a mere general objection shall not be sufficient to obtain appellate review of the court's action relating to instructions to the jury except as to an instruction directing a verdict or the court's action in declining to do so. An objection which merely complains that a jury instruction is an incorrect declaration of the law is a general objection, reserving no point for review. Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985). See also Precision Steel Warehouse v. Anderson-Martin, 313 Ark. 258, 854 S.W.2d 321 (1993); AAA T.V. and Stereo Rentals, Inc. v. Crawley, 284 Ark. 83, 679 S.W.2d 190 (1984); Carroll Boone Water Dist. v. M&P Equip. Co., 280 Ark. 560, 661 S.W.2d 345 (1983). The supreme court discussed the specificity requirement in Chandler & Ramsey v. Kirkpatrick, 270 Ark. 74, 603 S.W.2d 406 (1980), saying:

Third, Chandler's counsel made only a general objection to the court's instruction on the measure of damages, saying that "it did not set out the proper measure of damages for the case at bar." Such a broad statement did not tell the trial court exactly why the instruction was wrong and therefore was not sufficiently specific to present any question for review. Civil Procedure Rule 51 (1979).

Id. at 77, 603 S.W.2d at 407. It is only when an instruction is inherently erroneous that a general objection will suffice. Advocate, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003), cert. denied, ___ U.S. ___, 124 S. Ct. 535 (2003). An inherently erroneous instruction is one that could not be correct under any circumstances. Id. It cannot be said that the instruction in question was inherently erroneous; therefore, it was incumbent on appellant to make a specific objection. In sum, the issue appellant asserts on appeal has not been preserved for our review. Therefore, we decline to address the argument.

Appellant's second point on appeal is that the trial court erred in giving the instruction because there was no evidence showing a violation of each and every regulation included in the instruction. Appellant concedes that there was evidence relating to some of the regulations but contends that there was no evidence supportive of others. This argument also fails for the lack of a proper objection.

On this issue, the objection was that "[t]here is not a citation for a violation that relates to Mr. Coulter, and there's no evidence of every single thing listed in that instruction causing harm to Mr. Coulter." Appellant failed to specify which particular clauses were objectionable; thus the objection was general and ineffective to preserve any point for appeal. Bussell v. Missouri Pacific Railroad Co., supra; Swift v. Barker, 236 Ark. 805, 370 Ark. 71 (1963). As the court said in Swift v. Barker, supra:

It is next contended that the court erred in giving appellees' requested instruction No. 1, objected to, which was written in three different paragraphs. No specific objection was made to the instruction but only a general objection was made to the instruction as a whole. At least two of the clauses are correct statements of the law, and conceding, but not deciding, the other incorrect, since the instruction was not wholly wrong, the defect should have been reached by specific objection and not a general one.

Id. at 807, 370 S.W.2d at 72-73. We affirm on this point.

Affirmed.

Hart and roaf, JJ., agree.