Geraldine M. Shaw, Donald R. Shaw and Linda Varnum VS Plantation Management Company, L.L.C. d/b/a Harvest Manor Nursing Home, Reliance Insurance Company and John M. Rollinson
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NOT DESIGNATED FOR PUBLICATION COURT OF APPEAL STATE OF LOUISIANA FIRST CIRCUIT 2008 CA 1467 GERALDINE M SHAW DONALD R SHAW AND LINDA J VARNUM VERSUS PLANTATION MANAGEMENT L L C D B A HARVEST MANOR NURSING HOME RELIANCE INSURANCE COMPANY AND JOHN M ROLLINSON Judgment On rendered MAR 2 7 2009 Appeal from the 21st Judicial District Court Parish of Livingston State of Louisiana Number 90926 The Honorable Division A Wayne Ray Chutz Judge Presiding Counsel for Plaintiffs Appellants John P Aydell Jr Baton Rouge LA Geraldine Shaw et al David A Abramson New Orleans LA Charles A Schutte Jr Counsel for Defendant Appellee Baton Plantation Rouge LA Management Company L L C D B A Harvest Manor Nursing BEFORE CARTER cJ Home WHIPPLE AND DOWNING JJ DOWNING J In this appeal the relatives of claim that his fall and ultimate death urine Plaintiffs filed suit After premises the a trial elderly an were man caused residing in a nursing by his slipping in his home roommate s against the nursing home for negligently maintaining the the merits the trial on nursing home concluding that following rendered judgment in favor of not prove causation plaintiffs did For the judgment plaintiffs appeal court reasons we From that affirm the judgment FACTS AND PROCEDURAL HISTORY Plaintiffs sued Plantation Varnum Nursing whose Geraldine M appellants negligence they claim dismissed by failing to giving rise to a in Mr Shaw 3 2000 he secured section known living at home 1 John urinating s collectively than probably urine thus Harvest Manor Harvest Manor The trial not court court erred that Mr Shaw establishing causation and negligence is admitted to Harvest Manor and the locked unit because of his as the s follows as suffering from dementia and psychosis was The locked unit is reserved for problems 1 Rollinson more the alleged Ivan Shaw was associated with Alzheimer behavior a allege in their appeal that the trial roommate encompassing Eighty three year old January b d presumption of negligence The situation On s I Company find that the evidence showed slipped and fell L LC led to the death of Ivan Shaw suit Plaintiffs plaintiffs Shaw and Linda J Donald R Management Company and Reliance Insurance Home Shaw disease dementia was in placed a reported behavior while patients with behavior problems or suffering from other abnormal 2 roommate was llso Mr R lIinsOll died while discovery Dr Susan Nelson ordered Mr Sha v s named vas admission as pending to a defendant and no for failing further action the unit Donald SI13VV was signed only residents showing behavior problems would be admitted into the unit inappropriate behavior are examples or sLlch behavior problems that 2 ex crcisc due caution taken againsl hirn to the consent form Unruly hile vhkh stated outbursts and socially The locked unit holds up many of the residents to twenty five people and is kept locked because in this unit residing The locked unit is self contained with Each two bedrooms share bedrooms Mr Shaw s Mr Rollinson had the on roommate evidence that Mr and Mr sitting a patio dining area he Namely Shaw were room and 3 ten pads wore from senile dementia suffering was urinating was unit because of his conduct other on or patient s beds at diapers incontinent of bowel bladder or ambulatory and free to use the but he 5 4 Mr There is night for bladder control commonly prescribed medication Rollinson was aimlessly bath John Rollinson Rollinson suffered incontinence and a confused and wander recently transferred into the locked regular ward Flomax a are was no on Both Mr Shaw bathroom without assistance On Mr Shaw fell the floor to made and a The night attending at Harvest Manor Nurse nurse in urine slipped that he sustained on January 13 was a taken right hip by ambulance fracture with 2000 while still at to 1 of bed an the patients are not restrained pursuant to regulations slipped Betty Carney who did the use was hospital where it internal fixation Mr hospital passed in the Patient away s not the bathroom not was surgical his 6 determined D M intervention Shaw suffered on January and testify William 1 Hubbard displacement difficulties His condition worsened and he These out the floor He also told her that the urine orthopedist immediately performed On he got notation in her chart that Mr Shaw told her he got up to Mr Shaw an third s breathing 14 2000 The Bill of Righls LPN testified in deposition that Mr Rollinson was transferred into the unit for his o n as well as patient s safety She fUl1hcr testified that on at least one on asion he urinated on another patient s bcd She noted on January 3 2000 9 30 p In patient moved to mother room Very confused during the daytime worse in bed and urinates on other paticllls beds 1100r ct cetera Some concern of Jlt gets out of evening At night patlt Patient stable at this time patient safct licks Susan l v otber 5 benign prostatic hypertrophy Mr Shaw had previously undergone a transurethral resection of the a procedure vhere a tube is placed through the prostate and into the bladder to al1mv urine to drain enlarged prostate Incontinence is a frequent side effect after this procedure Because of prostate past the a fhis is 6 The Batoll Rouge General Medical Center notes dated January 6 2000 that Mr Shmv Jell in his roommate s urine source 3 contains a notation from an unknown of death cause obstructive performed on COPD pulmonary disease his throat due progressive loss of muscle tone the breathing airway Plaintiffs with Mr Shaw had In addition mandibular to on history of chronic a he had carcinoma an earlier surgery which caused the back of his throat and neck used at to the maintain 7 that Harvest Manor petition alleges assigned the floor had manifested itself in the past Harvest Manor failed to take steps protect these patients from to s they Plaintiffs claim that likely were a room incontinence in isolate Mr Rollinson from other floors where wet Mr Shaw to Rollinson Rollinson when it had notice that Mr urinating to Mr obstructive apnea was to walk patients or 8 DISCUSSION The focus of this basis trial to conclude that court evidence and safety on I in the were Mr only Shaw Nurse Susan Hicks that Mr Rollinson evening and court proven causation concluded that there beds and the floor s whether the trial plaintiffs had not the floor and 2 pertinent part worse patient on supporting their petition found him said in incorrectly appeal is was two had night he gets etc and that she reasonable factual Plaintiffs argue that the pieces of documentary statements to s the note of January 3 very confused at a out of was who nurse 2000 which during the daytime bed and urinates concerned for the on other patient s 9 Richard Mark Slataper M D explained in his deposition that prior to Mr Shaw s death he was having airway Dr Slatapcr testified that the nature or these dif11culties were dilliculties resulting ill respiratory distress fine and other times the ainvay would become pm1ially collapsed This condition is called obstructive sleep apnea He explained that this can be cJused by obesity or as in this case lack of muscle He tone He teslificd that the extensive neck dissection from a previous surgery added LO Mr Shmv s condition intcrmiltcnt t times he said 1ha1 Ihis condition was is self perpetuating in that l1cn the carbon dioxide which f1ll1her decreases the muscular lone behavior 8 but he could not say if this Plaintiffs also present t Sillce 9 problems we afflnning lrt yO arguments in the the trial courtjudgmcnL was the event airway isn lie cause explained of 1 11Sha t orking welL then you begin to retain people with this condition often have behavior problems that s this court finds merit in these issues are plaintiffs first assignment pretermitted In the court s written reas ons it stated in pertinent part Plaintiffs contend the defendanl is at fault for the slip and fall of Mr Ivan Shaw for allowing John Rollinson another resident of the nursing home and Mr Shaw s room mate to urinate on the floor thus The creating an unreasonable plaintiff bears Ihe burden risk ofharm to Mr Shaw when he altempted to go to the bathroom of proving by a preponderance ofthe evidence this contention The 4 of error Plaintiffs contend that the trial RN Harvest Manor him that Mr Shaw Director of s testified that when he court slipped in urine who did not Carney and that she observed floor where Mr Shaw fell Plaintiffs argue that the for at 2 be to liquid on the floor Plaintiffs further argue that it is since there is told Nurse A v 1216 Cir Infirmary 94 0078 This of negligence test In this case La the floor was more Detraz the trial explanation was Mr Shaw s must test show the fall must the premises 30 6 on hospital Plaintiffs are trying requires that causation the Furthermore Mr Shaw hospitallO a 4 Cir App the to personal injury suits the that it the accident Id on from Mr Rollinson 94 639 St Francis Medical Center 597 So 2d 1121 v between the incident in proved 4 p The burden then shifts presumption against case foreign substance a reasonable came on substance his not slip and fall a resulted from 1992 applies in was injury Reynolds is that it evidence he suffered flow incontinence no plaintiff Touro a m Green testify she informed liquid a most unlikely that the urine Carney that the urine occurred and clock o of Peter Green testimony Plaintiffs argue that Mr Nursing to Nurse spoke the ignored to to Neyrey So 2d 1214 1122 La App 2 exculpate itself from the trigger this presumption be established before the for See presumption determining the causal relationship question and the subsequent injury is whether the plaintiff probable than that the 05 1263 Lee v court not p 5 7 107 La stated that specifically subsequent injury was caused 950 So 2d 557 it could not find more 560 by In probably only evidence that supports Ihis contention came from Mr Shaw and Susan Hick s nurse s notes At approximalely 2 00 o clock a m on January 6 2000 Mr Shaw was found on the floor of his Mr Shaw was complaining of severe pain to his right hip Mr room by Betty Carney LPN Shaw stated he had fallen after stated the urine notes was concerning not from him John Rollinson in urine on Ihe floor on his way to the bathroom slipping Nurse Susan Hicks indicaled in her At etc Concerned of pts safety circumstantial evidence thaI Mr Shaw prior the presence of urine This standard has been Health Care fall may have occurred in the manner alleged by the probably than not that Mr Rollinson got out s court cannot reach the conclusion more of bed sometime 10 nurse 1 1 gets out of bed and urinates on olher pts beds PI stable @ this time While these statements are night floor plaintiff this January 3 2000 He to 2 00 on applied 02 1020 Ine p 6 o Ihe floor to La clock a m other health App and urinated next was the cause care to Mr Shaw of Mr Shaw s providers well as 5 Cir li28 03 as 839 So 2d 357 5 s bed and further that fall hospitals 361 S e MilIel Enlllgclinc than that Mr Rollinson got not urinated next to Mr of Mr Shaw cause its substitute own s factual reviewing at Carney cannot there was there is statement s liquid on him Nurse as an granddaughter Mr Shaw Shaw trial aside Carney how the or evidence that the substance s was court substance was to unsteady on not err in 11 in @ liquid 3 a m The case wrong the to liquid that granddaughter cause reading of was this the on told him urine but question the floor there is no Nor is there any of Mr Shaw s fall Mr door told the admissions clerk that II give weight to the no We therefore conclude that the statements in hearsay and the record that Mr Shaw corroborating evidence that was on outside to be there the floor Even if Nurse Dr Susan Nelson wrote in Mr Shaw was on liquid Carney liquid responded wet regarding The admissions clerk also noted that Mr his feet failing to came next on ever something whom he lived example of this was the notation ccording to the family Mr Shaw clothes saw was An a or Detraz 05 A careful Nurse only indicates that the floor caused the fall Double slipped clearly was a slipped in that liquid the floor on physical conditions aside there is because he the the fact statement s admission that there addled and confused much of the time did decided the differently He asked how she knew the the floor assuming case was weigh the evidence erroneous or consider Peter Green court to hearsay proof regarding when Shaw manifestly nothing in the record indicating that she Even the floor a m 561 floor and that Mr Shaw fell because he Mr Green be re on clock o views of the evidence would have decided the statement to s permissible two are Plaintiffs urge this Nurse to 2 00 would have findings because it court 1263 at p 7 950 So 2d court must not appellate choice between them if the even fall The s prior bed and that the presence of urine s Where there differently finder Shaw of bed sometime out beating on the garbage s progress notes cans chasing cats s a mental and Mr Shaw fell Carney saw a The notation states stripped off his had to go over to Mr Shaw s and direcl him back inside his house 10 get him dressed 6 liquid substance could have come on the floor when she from Mr Shaw himself after As discussed above duty to causal 1263 do not Shaw to Mr s assistance the at p 5 950 So 2d consider whether Harvest Manor breached its plaintiffs have not met their burden in Reviewing the record in its entirety at 560 physical evidence together with his feet and his confusion reversed on we Accordingly this error Mr Shaw s a factual Detraz establishing Detraz a 05 the absence of history of unsteadiness conclude that the trial cannot Causation is appeal absent manifest liquid falling relationship between the accident and the subsequent injury making its determination 561 we the resident because corroborative on came finding court erred in which should not be 05 1263 at p 7 950 So 2d at assignment of error is without merit DECREE For the cost of this reasons appeal is stated herein the judgment of the trial assessed court is affirmed against the plaintiffs appellants Geraldine Donald R Shaw and Linda J Vamum AFFIRMED 7 M The Shaw
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