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Retirement and Nursing Center - Austin Ltd. v. Joseph

Court of Appeals of Texas, Third District, Austin

August 21, 2019

Retirement and Nursing Center - Austin Ltd., Appellant
v.
Israel Joseph, Individually and as Personal Representative of the Estate of Adriana Lopez Joseph, Deceased, Appellee

          FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-15-002030, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Triana and Kelly

          MEMORANDUM OPINION

          GISELA D. TRIANA, JUSTICE

         Retirement and Nursing Center - Austin Ltd. (Nursing Home) challenges the district court's rulings overruling objections to the adequacy of expert reports in a health-care-liability claim filed by Israel Joseph, Individually and as Personal Representative of the Estate of Adriana Lopez Joseph, Deceased.[1] See Tex. Civ. Prac. & Rem. Code § 74.351(a), (c), (l) (addressing expert-reports under Medical Liability Act). On appeal, the Nursing Home contends that it was entitled to dismissal of Israel's liability claim and attorney's fees because the expert reports from an orthopedic surgeon and a gerontology nurse were deficient and because the nurse was unqualified to render an opinion as to causation. For the reasons that follow, we will affirm.

         BACKGROUND[2]

         In June 2011, Adriana was admitted to the Nursing Home. At the time of admission, she suffered from multiple medical problems, including an intracerebral hemorrhage that left her totally dependent on the nursing home staff for all of her activities of daily living, medications, and assistance with transfers and repositioning. Adriana was also at increased risk for fractures because of her osteoporosis. Given her frail condition and immobility, it was necessary for Nursing Home staff to use proper transfer techniques with correct alignment of her body when transferring her and performing daily activities for her, such as bathing and dressing.

         On or about July 5, 2013, nurses noted a small bruised area on Adriana's lower right jaw area with yellowish color around it. No other assessment was documented, and no investigation into the cause of her injuries was conducted. The next day, Nursing Home staff noted that Adriana's right knee was swollen. Areas of dark discoloration on her right lower jaw and left upper jaw were also noted. A hospital x-ray showed that Adriana had a displaced spiral fracture to her right femur that was inoperable. On or about July 10, 2013, Adriana was placed in hospice care related to the pain associated with her fracture. She died on July 23, 2013.

         Israel Joseph, acting individually and on behalf of his mother's estate, sued the Nursing Home, alleging that it was negligent in:

a. Failing to properly position Ms. Joseph during a transfer;
b. Failing to immediately recognize and report Ms. Joseph's injuries;
c. Transferring Ms. Joseph in such a manner as to cause a fracture to her femur;
d. Failing to assign nursing personnel duties consistent with their qualifications based on each resident's written plan of care and the nursing skills needed to provide care to residents, and failing to provide services which meet professional standards of quality, in violation of § 19.802, Texas Dept. of Aging and Disability Services Regulations, and OBRA Code § 483.30;
e. Failing to maintain clinical records on each resident that are complete and accurately documented, in violation of § 19.1910 of the Texas Dept. of Aging and Disability Services Regulations;
f. Fail[ing] to implement and maintain programs of orientation, training and continuing in-service education to develop skills of its staff: as described in § 19.1903 and § 19.1929 of the Texas Dept. of Aging and Disability Services Regulations;
g. Failing to use proper transfer techniques, considering Ms. Joseph's needs and risk for fractures;
h. Fail[ing] to investigate the cause of Ms. Joseph's injuries when it was clear to the Nursing Home staff that she had been injured;
i. Failing to care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life, in violation of 42 CFR § 483.15;
j. Failing to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness, in ...

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