Estate of Ann Tippett Mann, Deceased--Appeal from Probate Court No 1 of Bexar County

MEMORANDUM OPINION

No. 04-04-00649-CV

ESTATE OF ANN TIPPETT MANN, Judy Mann McDonald and Lois Mann Jordan, Individually and as Next Friends of Ann Tippett Mann,

Appellants

v.

GERIATRIC SERVICES, INC.,

Appellee

From the Probate Court No. 1, Bexar County, Texas

Trial Court No. 2003-PC-0569

Honorable Polly Jackson Spencer, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Rebecca Simmons, Justice

Delivered and Filed: December 14, 2005

AFFIRMED

The Estate of Ann Tippett Mann, along with Judy Mann McDonald and Lois Mann Jordan, individually and as next friends of Ann Tippett Mann, sued Geriatric Services, Inc. for negligence in its care of Ann Tippett Mann and for breach of contract. // After the jury returned a verdict in favor of Geriatric Services, Inc. on both of appellants causes of action, the trial court entered a take-nothing judgment in favor of Geriatric Services, Inc. We affirm the trial court s judgment.

BackgroundAnn Tippett Mann ( Tippett ) was diagnosed with Alzheimer s disease at the age of 87. Sometime after her diagnosis, Tippett s guardian, Melinda Powers, hired Geriatric Services, Inc. ( GSI ) to provide home health care services to Tippett. Within GSI s first year of caring for Tippett, Tippett s health began to rapidly deteriorate. Tippett became lethargic and slept most of the day. Moreover, Tippett lost nearly 25% of her body weight. Dissatisfied with the care GSI was providing to Tippett, Tippett s daughters, Judy Mann McDonald and Lois Mann Jordan, sought to have Powers removed as their mother s guardian and GSI removed as their mother s home health care provider. Judy and Lois were eventually able to remove Powers and GSI. However, six months after removing Powers and GSI, Tippett died at the age of 91. The causes of death listed on Tippett s death certificate were Alzheimer s disease, cerebrovascular disease, and malnutrition.

Judy, Lois, and Tippett s estate (collectively the Manns ) sued GSI for negligence in its care of Tippett and for breach of contract. The Manns alleged GSI, among other things, excessively medicated Tippett; isolated Tippett from family, friends, and physicians; caused Tippett s health to deteriorate; and failed to provide proper care to Tippett. The jury returned a verdict in favor of GSI, and the trial court entered a take-nothing judgment in GSI s favor. In five issues, the Manns contend: (1) the jury s findings of no negligence and no proximate cause are against the overwhelming weight and preponderance of the evidence; (2) the trial court erroneously excluded opinion testimony by their nursing expert on the issue of causation; (3) the trial court erroneously excluded four of their trial exhibits; (4) the trial court erred in refusing to submit their requested instructions on negligence per se; and (5) the trial court erred in refusing to submit jury questions regarding Judy s and Lois s individual claims against GSI.

Sufficiency of the EvidenceIn their fourth issue, the Manns assert that the jury s findings of no negligence and no proximate cause are against the overwhelming weight and preponderance of the evidence. When a party challenges the factual sufficiency of evidence regarding a refusal to find on an issue upon which that party bore the burden of proof, the party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In reviewing a great weight and preponderance issue, we must examine the record to determine if there is some evidence to support the finding and, if so, determine, in light of the entire record, whether the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. Id. We cannot reverse merely because we conclude that a preponderance of the evidence supports the opposing answer, nor can we substitute our opinion for that of the trier of fact and determine that we would have reached a different conclusion. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988). The fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony and resolves any inconsistencies in the testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

Jury question number one asked, Did the negligence, if any, of [GSI] proximately cause injury to Ann [Tippett] Mann? This question undoubtedly asked the jury to find both whether GSI was negligent and whether any such negligence was the proximate cause of Tippett s injuries. The jury s negative answer to question one may therefore have been based on the jury s refusal to find either negligence or proximate cause. Thus, for the Manns sufficiency challenge to succeed, the Manns must demonstrate the jury s negative answer to both the negligence and proximate cause issues is against the great weight and preponderance of the evidence.

Turning to the record, it appears that if the jury s negative answer to question one was based on a failure to find proximate cause, that answer is not against the great weight and preponderance of the evidence. To establish proximate cause, the plaintiff must prove two elements, cause-in-fact and foreseeability. IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). Cause-in-fact is established when the act or omission is a substantial factor in bringing about the injuries, and without it, the harm would not have occurred. Id. at 799.

At trial, Dr. Martha Leatherman, a psychiatrist, testified that she is recognized in the community as an expert on Alzheimer s disease. She stated that Alzheimer s disease is a progressive form of dementia that affects a person both mentally and physically. As the disease destroys a person s brain cells, the individual gradually loses control over memory, judgment, and ability to perform functions like breathing, balancing, and swallowing. According to Dr. Leatherman, Alzheimer s disease has no known cure and is always fatal. //

Dr. Leatherman stated that Tippett had some cognitive difficulties when she first came into GSI s care. She stated that Tippett was not eating well and lacked sufficient judgment to care for herself at that time. Dr. Leatherman further testified that although Tippett was physically able to go out to eat and jump on a trampoline when she came into GSI s care, Tippett s ability to do these tasks did not mean that she was not seriously impaired by her disease at that time. She testified Tippett suffered from bowel incontinence when she came into GSI s care. According to Dr. Leatherman, the fact that Tippett suffered from bowel incontinence suggested Tippett was in an advanced stage of the disease, as Alzheimer s patients usually retain control over their bowels for a long period of time.

Dr. Leatherman testified that weight loss is a common side effect of Alzheimer s disease. She stated that Tippett arrived at GSI weighing 92 pounds, but fluctuated between 70 and 106.4 pounds while under GSI s care. Dr. Leatherman stated that GSI was eventually able to stabilize Tippett s weight at 106.4 pounds by the time she was removed from its care. She further testified that although GSI was able to return Tippett to her normal weight, Tippett would certainly have continued to experience weight loss problem due to the nature of her disease.

Dr. Leatherman indicated that Tippett s weight fluctuation was caused by her Alzheimer s disease. She stated that although Tippett may have weighed around 70 pounds at one time, she believed Tippett was never malnourished. Dr. Leatherman acknowledged that a weight loss like Tippett s may result in a loss of muscle mass and increase the individual s risk of premature death. Nevertheless, Dr. Leatherman expressly testified that the weight loss Tippett suffered while under GSI s care did not harm her or lead to her premature demise.

Dr. Leatherman further stated Alzheimer s patients are generally treated with medications. Dr. Leatherman testified that she did not believe GSI excessively medicated Tippett while under its care. She stated that Tippett was given approximately four different medications while under GSI s care, each of which was appropriate for Tippett s condition. // By comparison, Dr. Leatherman testified that her average patient is on 18 different medications. According to Dr. Leatherman, Tippett s medications helped lessen her violent episodes, delusional thinking, hallucinations, and difficulties sleeping. Dr. Leatherman testified that Tippett received low dosages of the medications she was prescribed. She also stated that the guidelines GSI established for the care of Tippett were appropriate. Moreover, Dr. Leatherman testified Tippett received very good care from GSI.

The Manns argue the cause of Tippett s mental/physical deterioration was the negligent care provided by GSI. They argue that their position is supported by the fact that Tippett, who was once an active individual, became lethargic and slept most of her days after coming into GSI s care. The Manns also cite Tippett s premature demise as evidence that GSI s negligence caused her harm. They argue that most Alzheimer s patients live for about ten years after their initial diagnosis, whereas Tippett lived for only four years after hers. The Manns further contend GSI s negligence caused her harm based on Dr. Leatherman s testimony that significant weight loss, much like the weight loss Tippett suffered while under GSI s care, potentially leads to muscle loss and premature death.

The Manns argument, however, clearly ignores evidence from Dr. Leatherman suggesting the sole cause of Tippett s deterioration and death was her Alzheimer s disease. The jury could have concluded from this evidence that GSI s care did not cause Tippett any harm. While conflicting inferences could be drawn from the evidence, we are not the fact finder and cannot substitute our judgment for that of the jury. In light of the evidence presented, we cannot hold the jury s negative answer to question one is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. The Manns fourth issue is overruled.

Expert Nurse TestimonyIn their second issue, the Manns complain the trial court erroneously excluded opinion testimony by their nursing expert, Vaunette Fay, on the issue of causation. GSI, however, contends the trial court s ruling concerning Nurse Fay s testimony was proper because the nurse was unqualified to give an expert opinion on the cause of Tippett s physical/mental deterioration or death. According to GSI, the trial court allowed testimony for which Nurse Fay was shown to be qualified, and only kept out that portion of her testimony that went beyond her qualifications.

Texas Rule of Evidence 702 provides, [i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Tex. R. Evid. 702. The burden of establishing that a witness is qualified as an expert is on the offering party. United Blood Servs. v. Longoria, 938 S.W.2d 29, 31 (Tex. 1997). Whether a witness is qualified to offer expert testimony is a matter committed to the trial court s discretion. Id. at 30. A trial court abuses its discretion if it acts without reference to any guiding rules or principles. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).

The record indicates Nurse Fay is an advanced nurse practitioner licensed in the State of Texas. // As such, she is governed by the Texas Nursing Practice Act [( TNPA )], which defines the privileges and limitations of her right to practice professional nursing in this State. Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 248 (Tex. App. San Antonio 2004, no pet.). Under the TNPA, Nurse Fay is expressly prohibited from acts of medical diagnosis. Id.

In this case, the Manns sought to admit Nurse Fay s testimony to prove that Tippett s deterioration and death were caused by GSI s excessive administration of drugs to Tippett and its failure to monitor Tippett s weight, not her Alzheimer s disease. To arrive at her opinion, however, Nurse Fay necessarily had to do something she is prohibited by law from doing; that is, make a medical diagnosis concerning Tippett s condition. See Kincaid v. Austin Ctr. for Outpatient Surgery, L.P., No. 03-04-00824-CV, 2005 WL 2978602, *2 (Tex. App. Austin Nov. 4, 2005, no pet. h.) (mem. op.); Costello, 141 S.W.3d at 248-49. Because Nurse Fay is expressly prohibited from acts of medical diagnosis, we hold Fay is unqualified to give an opinion on the medical cause of Tippett s injuries in this case. See Costello, 141 S.W.3d at 248. The Manns second issue is overruled.

Trial Exhibits In their third issue, the Manns complain the trial court erroneously excluded four of their exhibits, exhibit numbers 17, 18, 21, and 24. We review the trial court s evidentiary ruling under an abuse of discretion standard. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). We must uphold the trial court s ruling if there is any legitimate basis for it. Id. Even if the trial court s evidentiary ruling is erroneous, we will not reverse the ruling unless the error probably caused the rendition of an improper judgment. Id.

The disputed exhibits consist of charts and graphs created by the Manns from information collected from GSI s records. Several of the exhibits were made shortly before trial while the others were made during the course of trial. Exhibit 17 is a chart comparing the types and dosages of the drugs GSI purchased and administered to Tippett. Exhibit 18 is a pie chart showing the number of documented and undocumented doses of drugs GSI administered to Tippett. Exhibit 21 is a chart showing Tippett s weight over time. Exhibit 24 is a graph comparing Tippett s weight to the quantity of medications GSI administered to Tippett over time.

When the Manns attempted to introduce these exhibits during trial, GSI objected that the Manns failed to produce the exhibits in response to its request for disclosure. The trial court admitted the exhibits and notified GSI that it could raise a future challenge to the accuracy of the exhibits once it had an opportunity to review the exhibits more thoroughly. After the Manns witness testified to the content of the exhibits, GSI reasserted its objection. The trial court reconsidered GSI s objection and excluded the exhibits.

The Manns contend they were cast in a bad light before the jury when the trial court initially admitted the exhibits subject to a review for accuracy, and then subsequently withdrew the exhibits. As argued by the Manns, the jury was left to speculate that the Manns attempted to provide inaccurate evidence. There is no evidence to support this claim, nor is there any indication in the record that the jury in any way noted the absence of the excluded exhibits. Further, we note that the trial court offered to give the jury a limiting instruction indicating the exhibits were excluded for procedural reasons, but the Manns objected to the submission of such instruction.

Even if we assume the trial court erred in excluding the Manns exhibits, we cannot say the

error probably caused the rendition of an improper judgment. The record indicates that the Manns expert was essentially allowed to recreate exhibits 17 and 18 as exhibits 49 and 50, which were admitted into evidence by the trial court. The record further indicates that exhibit 21 is substantially similar to another exhibit admitted by the trial court, exhibit 23. Finally, exhibit 24 is cumulative of witness testimony suggesting a direct a correlation between Tippett s weight loss and the quantity of medication GSI administered to Tippett. Because exhibits 17, 18, 21 and 24 are cumulative of other record evidence, we cannot say the trial court s evidentiary ruling constituted reversible error. See Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994) ( An error in the exclusion of evidence requires reversal if it is both controlling on a material issue and not cumulative ). The Manns third issue is overruled.

Charge ErrorIn their first issue, the Manns contend the trial court erred in refusing to submit their requested instructions on negligence per se. A trial court s denial of a requested instruction is reviewed for an abuse of discretion. Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998). The trial court has great latitude and considerable discretion to determine necessary and proper jury instructions. Id. We reverse only if, in light of the pleadings, evidence, and the entire jury charge, the error amounted to such a denial of the complaining party s rights as was reasonably calculated to cause, and probably did cause, rendition of an improper judgment. Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass n, 710 S.W.2d 551, 555 (Tex. 1986).

Negligence per se is a common-law doctrine in which a duty is imposed based on a standard of conduct created by a penal statute rather than on the reasonably prudent person test used in pure negligence claims. Smith v. Merritt, 940 S.W.2d 602, 607 (Tex. 1997). The threshold questions in every negligence per se case are: (1) whether the plaintiff belongs to the class that the statute was intended to protect; and (2) whether the plaintiff s injury is of a type that the statute was designed to prevent. Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998).

The Manns requested the following instructions:

Requested Instruction No. 1: You are further instructed that negligence, when used with respect to a home health agency, includes failure to include notation in the medication administration record or clinical notes of medications given or not given and the reason.

Requested Instruction No. 3: You are further instructed that negligence, when used with respect to a home health agency, includes failure to insure compliance with the rules of the Board of Nurse Examiners for the State of Texas with respect to delegation of selected nursing tasks by registered professional nurses to unlicensed personnel.

Requested Instruction No. 6: You are further instructed that negligence, when used with respect to a home health agency, includes use of chemical restraints administered for the purpose of discipline or convenience and not required to use to treat the individual s medical symptoms.

The Manns rely on GSI s alleged violation of several sections of chapter 97 of title 40 of the Texas Administrative Code as the basis for their negligence per se claims. //

GSI s alleged violation of chapter 97 of title 40 of the Administrative Code, however, will not support a negligence per se claim because these regulations are not penal in nature. The penalties for enforcement of chapter 97 of title 40 are civil remedies, ranging from license revocation, to administrative penalties, to civil penalties. 40 Tex. Admin. Code 97.601-.604. When, as here, the basis for the negligence per se claims is an alleged violation of non-penal administrative code provisions, the trial court does not err when it denies the requesting party s negligence per se instructions. See Ridgecrest Ret. & Healthcare v. Urban, 135 S.W.3d 757, 763 (Tex. App. Houston [1st Dist.] 2004, pet. denied) (holding alleged violation of chapter 92 of title 40 of the Texas Administrative Code would not support negligence per se claim because regulations were not penal in nature); Pack v. Crossroads, Inc., 53 S.W.3d 492, 509-10 (Tex. App. Fort Worth 2001, pet. denied) (holding alleged violation of chapter 19 of title 40 of the Texas Administrative Code would not support negligence per se claim because regulations were not penal in nature). The Manns first issue is overruled. //

The Manns further claim the trial court erred by refusing to submit jury questions regarding Judy s and Lois s individual claims against GSI. The Manns, however, have not supported their complaint with either legal authority or references to the record. The Manns failure to provide either references to the record or supporting authority waived the claimed error. Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App. Houston [14th Dist.] 2002, no pet.). The Manns fifth issue is therefore overruled.

Conclusion

Based on the foregoing, the trial court s judgment is affirmed. //

Catherine Stone, Justice