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Mason v. Amed-Health, Inc.

Court of Appeals of Texas, First District

August 1, 2019


          On Appeal from the 10th District Court Galveston County, Texas Trial Court Case No. 16-CV-0731

          Panel consists of Justices Keyes, Higley, and Landau.


          Evelyn V. Keyes Justice

         This is a medical liability claim filed against a hospice-care company and its medical director-appellees, AMed-Health, Inc., d/b/a A*Med Community Hospice and Dr. Folasade Ojo-by appellants, patient Charles Vance and the friends in whose home he received hospice care, James Mason, Helen Mason, Murphy Mason, and Anna Payne (collectively, the Masons). The Masons and Vance sued A*Med and Dr. Ojo for negligence arising out of a fire that occurred when Vance smoked a cigar while using oxygen prescribed by Dr. Ojo and provided by A*Med. The trial court granted summary judgment in favor of A*Med and Dr. Ojo and dismissed the Masons' and Vance's claims.

         In six issues, the Masons and Vance argue that: (1) the trial court erred in finding A*Med and Dr. Ojo owed no duty to the Masons; (2) the trial court erred in granting summary judgment on the basis that A*Med and Dr. Ojo did not breach the standard of care; (3) the trial court erred in granting summary judgment in favor of Dr. Ojo on the issue of causation; (4) the trial court erred in granting summary judgment on the Masons' and Vance's claim of gross negligence; (5) A*Med's and Dr. Ojo's no-evidence motions were conclusory and should not have been granted; and (6) "If the trial court is deemed to have granted summary judgment on how to measure property damages, then the trial court is in clear error."

         Because we conclude that the Masons and Vance raised a material fact issue on each element of their negligence claims against A*Med and Dr. Ojo, we reverse and remand for further proceedings.


         Vance is a veteran with a medical history of depression, post-traumatic stress disorder (PTSD), heart disease, and smoking. He had fallen on hard times and was staying in the home of his friend, James Mason. In January 2015, Vance was admitted to Clear Lake Regional Medical Center to be treated for pneumonia and congestive heart failure, where his primary attending physician was Dr. Rakesh Shah. At the time of his hospitalization, Vance was on numerous medications including Norco-a narcotic pain medication-and various anti-depressants. Dr. Shah prescribed some additional medications for depression, sleep-aids, narcotic pain medications, and oxygen via nasal cannula due to Vance's congestive heart failure and pneumonia. After considering Vance's condition and the possibilities of releasing him to a hospital or care center run by the Veteran's Administration (VA), Dr. Shah ultimately determined that Vance could be released to receive hospice care at home.

         On February 5, 2015, Vance was released from the hospital to Mason's home, where Vance received hospice care from A*Med and its medical director, Dr. Ojo. Mason's home was located on Rice Road in Dickinson, Texas. Mason and his siblings, Murphy Mason, Helen Mason, and Anna Payne, had inherited the home from their parents. At the time Vance was released to home hospice care, James Mason lived in the home along with a friend and her two young children.

         On February 5, 2015, Vance was seen by an A*Med social worker and by a hospice nurse, identified as "Nurse Amezquetta," who completed the initial care plan, performed an assessment, and implemented Dr. Ojo's admitting orders. Dr. Ojo ordered a "comfort kit" of medications for Vance that included morphine and lorazepam. Dr. Ojo also continued Dr. Shah's orders for Vance to receive oxygen and Norco. Dr. Ojo testified that the purpose of the comfort kit medications was to allow her hospice patients to die in peace.

         On February 6, 2015, Nurse Ranay Danek, a "field nurse" with A*Med, provided hospice nursing services to Vance. She performed an assessment in which she determined that Vance was alert and oriented and able to take his medications without the aid of a caregiver. Danek was aware of the medications that had been prescribed for Vance, including morphine and other narcotic pain relievers in addition to his anti-depressants and sleep aids. Vance informed Danek that he was a smoker, and she provided him with verbal and written admonishments regarding the dangers of smoking while using oxygen. Danek testified that there were also warnings placed on the wall, the oxygen canisters, and the oxygen concentrator near Vance's bed. Danek testified that she was aware of the dangers posed by smoking while on oxygen. She stated that smoking while on oxygen could "literally blow your house up. . . . I'm not saying this is an outlier, this is a very real possibility." Dr. Ojo also acknowledged the dangers of smoking while on oxygen, and she admitted that at least one former patient had died in a fire caused by smoking while on oxygen.

         James Mason likewise testified in his deposition that he did not provide any caregiving to Vance and that Vance took care of himself, although he would have provided care to Vance if he had been asked to do so. Mason testified that he was aware of the dangers of smoking around oxygen and that he had asked Vance to smoke outside the house after the oxygen was delivered. Mason testified that, because he was concerned, he asked the A*Med nurse whether, "with all the medicine and stuff," Vance should be drinking and smoking like he was. The nurse told him, "Go ahead, let him do what he want[s] to do," and "it's all right because he's going to die soon." Mason denied that he was ever warned by any A*Med personnel of the danger posed by the oxygen, and he denied seeing any warning signs posted in his home. Murphy Mason likewise testified that he saw Vance smoking on the porch of the home on occasion and that he did not see any warnings or signs up in the home, although he also acknowledged that he was not looking for any warning signs.

         Danek visited Vance again on February 10, 2015, and again determined that he was alert and oriented and able to understand and act on the instructions that she had provided to him. On this visit, Danek observed an ashtray by Vance's bedside, which was also where the oxygen canister was placed. Vance told her that the ashtray was old, and she again admonished him regarding the dangers of smoking. Vance also testified that, during this visit, he and Danek discussed his medications and she encouraged him to take all of the medications that had been prescribed to him. He testified that February 10, 2015, was the first time since being released to home hospice care that he took all of his prescribed medications.

         Later in the evening of February 10, 2015, while James Mason was in the shower, Vance decided to smoke a cigar. Vance agreed in his deposition that representatives from A*Med told him not to smoke with the oxygen on, that he knew that oxygen and smoking "doesn't mix," and that A*Med had given him written admonishments and instructions regarding using oxygen. Vance testified that he knew smoking with his oxygen on was dangerous and could cause a fire, and he had agreed to follow Danek's admonishment that he smoke outside. However, on the night of the fire, it was cold outside so he decided to smoke inside. Vance testified that he believed he was impaired from the medication he was taking, and so he did not realize that he had not turned the oxygen off. When Vance lit his cigar, a fire broke out.

         Vance was able to get himself out of the home. James Mason likewise escaped from the fire after helping his friend and her two young children escape. Both Vance and Mason sustained burns requiring treatment at the hospital and a burn center. Vance and the Masons also sustained property damage as a result of the fire-the Masons' home was completely destroyed along with the majority of the personal property stored in and around the home.

         Vance and the Masons sued A*Med and Dr. Ojo for causes of action based on medical malpractice and gross negligence "which led to personal injuries and property damage from an oxygen-fed house fire caused by prescribing and providing multiple mind-altering medicines to a disabled veteran on hospice (Mr. Vance), who was a known smoker, and not providing a nicotine substitute." The Masons and Vance specifically asserted that A*Med and Dr. Ojo breached the duty of care owed to them by failing to properly educate both Vance and Mason about the dangers of smoking while on oxygen and explicitly identifying the high risk of fire.

         They asserted that Dr. Ojo deviated from the standard of care by "taking over Mr. Vance's care in a hospice setting," and "either failing to notice that Mr. Vance was a smoker who was being prescribed home oxygen and opiate pain drugs without a nicotine replacement, or in noticing and failing to provide or offer the nicotine replacement." They further alleged that "A*Med deviated from the standard of care by not providing a nicotine replacement for Mr. Vance, not offering a nicotine replacement for Mr. Vance, and not educating either Mr. Vance or James Mason on combination use of sedative agents, smoking, and oxygen." The Masons and Vance also asserted that A*Med's nurse's home inspection was inadequate and that she wrongly "told James Mason that Mr. Vance could smoke because he was going to die anyway" and failed to remove the oxygen or take other measures when she learned that Vance was a smoker. Finally, they asserted that A*Med deviated from the standard of care by delivering between twelve and fourteen canisters of oxygen at once, as this was an excessive amount of oxygen and created an explosion hazard.

         A*Med moved for traditional and no-evidence summary judgment, and Dr. Ojo moved to join this motion. Among other grounds, A*Med asserted that the Masons were third-party, non-patient plaintiffs and, thus, the Masons could not establish that A*Med owed them any duty, a required element in medical negligence lawsuits. A*Med further argued that there was no probative evidence that it had breached any duty owed to Vance. A*Med also argued that neither the Masons nor Vance had any clear and convincing evidence to support their claims for gross negligence. A*Med supported its motion for summary judgment with excerpts from the depositions of Danek, Vance, and James Mason.

         In response, the Masons and Vance asserted that both A*Med and Dr. Ojo owed duties to them, which they violated by prescribing narcotic pain killers, anti-anxiety medication, anti-depressants, and oxygen simultaneously to a known smoker. The Masons and Vance also argued that Dr. Ojo and A*Med personnel knew that Vance was a smoker but did not offer any smoking cessation medicines to Vance. The Masons and Vance also asserted that no one warned Vance or Mason about the dangers of Vance's drug and oxygen treatments while being a smoker. The Masons and Vance supported their response with deposition testimony and other evidence.

         Regarding Dr. Ojo, the Masons and Vance argued, "Dr. Ojo didn't make a personal evaluation of Vance's risk of smoking while on oxygen; instead, he was given a booklet that told him not to smoke in the house with oxygen. She didn't offer Vance a nicotine replacement, but decided to wait for him to state that he wanted to quit smoking." They also asserted that Dr. Ojo "would not admit that the medicines would make Vance less alert."

         The Masons and Vance also cited portions of the deposition of their medical expert, Dr. Chau, who testified that the fire hazard posed by smoking near oxygen is a well-known problem. Dr. Chau testified that the U.S. Department of Veteran Affairs had published a directive to guide providers to evaluate the risk of patients starting fires while on oxygen treatment, to require nicotine replacement therapy, and to provide education to the other residents of the patient's home.

         Dr. Chau also testified that "Dr. Ojo deviated from the standard of care by essentially prescribing home oxygen and opiates, pain meds, not offering alternatives to smoking," and "not offering any form of nicotine replacement." The Masons and Vance also provided evidence, based on A*Med's records, that Danek noted in one of her reports that she saw an ashtray near Vance's bed. The report indicated that Danek discussed the dangers of smoking while on oxygen with Vance at that time, but Vance agreed with her that he would smoke outside and told her that the ashtray was "old." Danek testified at her deposition that she discussed the results of her evaluation of Vance with Dr. Ojo, including Vance's status as a current smoker, but she did not receive any new or different orders from Dr. Ojo.

         The Masons and Vance argued, "Instead of offering a nicotine replacement, or alerting Dr. Ojo to the presence of an ashtray, Nurse Danek showed Mr. Vance the A*Med smoking handbook and told him that a person cannot smoke in the home." Dr. Chau opined that A*Med's counseling and education were insufficient, stating that after the discovery of the ashtray near Vance's bed, A*Med and Dr. Ojo should have taken action:

[O]ne alternative should have been provided, educational alternatives, education to the caregivers around him of the dangers of fire at that particular case, understanding of the scenario in which he smoked, what was the condition of the oxygen when he was smoking.
But also, a discussion with the physician, the medical director, this is a very high-risk patient in a high-risk situation where he is noncompliant. And that noncompliance should have triggered some type of plan that said, "Okay. We need to come in at this point and offer him a smoking cessation program, a-counseling and, you know, remove his oxygen." He's too high risk.

         Dr. Chau further opined that Vance should not have been on home oxygen at all due to his mental health issues, his history of "noncompliance," and A*Med's documentation that he "would have continued smoking anyway."

         The Masons argued that A*Med and Dr. Ojo owed them a duty because the injuries to their property were a foreseeable result of prescribing narcotics and oxygen to a smoker. They asserted that A*Med and Dr. Ojo had a duty to find out who Vance was living with and to provide them with the same warnings that Vance ought to have received.

         The trial court granted the traditional and no-evidence motion for summary judgment, stating in its order that A*Med "shall have summary judgment granted in its favor as to all claims made by Plaintiffs, JAMES MASON, CHARLES VANCE, HELEN MASON, MURPHY MASON and ANNA PAYNE."

         Following this ruling, Dr. Ojo filed a separate motion for no-evidence and traditional summary judgment. She argued, again, that the Masons and Vance failed to provide evidence showing that she owed a legal duty to the Masons, that she breached any legal duty owed to Vance, or that she caused any harm to either the Masons or Vance, and that they failed to provide clear and convincing evidence of gross negligence or exemplary damages. The Masons and Vance again responded, providing similar arguments to those they had set out in the response to A*Med's motion.

         The trial court granted Dr. Ojo's summary judgment motion, finally disposing of all claims of all parties. This appeal followed.

         Summary ...

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