Opinion
Civil Action No. 3:98-CV-0146-L
May 31, 2002
MEMORANDUM OPINION AND ORDER
Plaintiffs Sandra Naab ("Naab"), Brandie Armijo ("Brandie"), and Karri Miller ("Karri") (collectively, "Plaintiffs") sued the United States of America on behalf of themselves and on behalf of the estate of Edwin Armijo ("Armijo"). Plaintiffs brought this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671, et seq., alleging Armijo received substandard care and treatment while a patient at the Veterans Administration Nursing Home and Hospital in Dallas, Texas. The court held a bench trial on Plaintiffs' claims on May 25-26, and 30, 2000. By this Memorandum Opinion and Order, the court makes its findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).
The facts contained herein are either undisputed or the court has made the finding based on the credibility or believability of each witness. In doing so, the court considered all of the circumstances under which the witness testified which include: the relationship of the witness to Plaintiffs or Defendants; the interest, if any, the witness has in the outcome of the case; the witness's appearance, demeanor, and manner of testifying while on the witness stand; the witness's apparent candor and fairness, or the lack thereof; the reasonableness or unreasonableness of the witness's testimony; the opportunity of the witness to observe or acquire knowledge concerning the facts to which he or she testified; the extend to which the witness was contradicted or supported by other credible evidence; and whether such contradiction related to an important factor in the case or some minor or unimportant detail.
This is a medical malpractice action brought against the Dallas Veteran's Administration Hospital. Sandra Armijo Naab was the wife of Edwin Armijo and the mother of his two children, Karri Armijo Miller and Brandie Armijo. Armijo was first diagnosed with an HIV infection in 1986. His condition did not cause any major medical problems until early 1993. On June 20, 1993, Armijo was admitted to the Dallas Veterans Administration Medical Center and was diagnosed with acquired immunodeficiency syndrome ("AIDS") and with progressive multifocal leukoencephalopathy ("PML"), a disease associated with the advanced stages of AIDS. The prognosis was dire; Armijo's treating physicians informed him that he could expect to live no longer than two months.
On June 30, 1993, Armijo was transferred to the VA Nursing Home Care Unit for terminal care. The initial nursing assessment documented that Armijo had left-sided arm weakness, paralysis of the left leg, and noted that he would need assistance with bathing and eating his meals. Armijo received treatment in the nursing home unit from June 30, 1993, until July 22 1993. By July 21, Armijo's medical condition had significantly deteriorated, and on July, 22, 1993, he was transferred from the nursing care unit to the general medical service center of the hospital. Armijo died on August 8, 1993, from bronchopneumonia, a condition caused by neurological damage and the aspiration of saliva into his lungs.
Plaintiffs made numerous complaints regarding the quality of the nursing care delivered to Armijo during his period of confinement in the nursing unit. Specifically, Naab alleged that the nursing staff failed to clean Armijo's living environment, failed to bathe and administer oral care properly, failed to administer properly food and medication, failed to change his catheter, failed to treat his skin properly, and failed to change his linens and diapers. At some point on or around July 19, 1993, Naab met with Tom Rardin, a representative from the AIDS Interfaith Network, who agreed to investigate Plaintiffs' concerns and to meet with hospital administrators regarding the level of care provided to Armijo.
On July 20, 1993, Rardin met with Naab and Armijo in Armijo's room at the VA nursing home. Rardin described Armijo's room as "filthy" and "soiled," finding "multiple areas where things had been spilled and dried," and discovered the "bathroom was dirty and crammed with equipment such as a walker and a wheelchair." After examining Armijo, Rardin also reported finding evidence of skin deterioration. Rardin and Naab met with the Director of Nursing, Suzanne Olsen ("Olsen") and the assistant Director of Nursing Nancy McCuillan ("McCuillan"). Olsen and McCuillan accompanied Rardin and Naab to Armijo's room, surveyed their concerns, and assured Naab that her concerns regarding the level of care given to Armijo would be addressed.
Later that day, a skin care nurse specialist from the hospital examined Armijo's skin and found no evidence of skin deterioration or reddened areas that commonly indicate the formation of bed sores. The nurse specialist also indicated that the patient was found clean and dry. On July 21, 1993, a dermatologist examined Armijo's skin and confirmed the findings of the nurse specialist. Armijo was placed on a special mattress that prevents the formation of bed sores, and the nursing notes indicate that he was turned every two hours. The autopsy report ultimately found that Armijo did not have any bed sores on his body.
The evidence submitted at trial also indicated that Armijo's room was cleaned daily. During her initial inspection, Olsen noted that the room appeared to be cluttered, due in part to the small size of the room and the amount of supplies and equipment that it contained, but did not find the room unsanitary. James Manzay ("Manzay") worked as a housekeeper in the nursing home during the time period at issue, and testified that he cleaned the sinks, mopped the floors, cleaned the commode, and emptied the trash cans on a daily basis. In response to the family's allegations, the supervisor of janitorial services, Bobbie Mosley, checked Armijo's room for cleanliness four to five times a day to ensure that it was clean.
Plaintiffs made numerous other complaints regarding the level of nursing care given to Armijo. For example, on July 5, 1993, Plaintiffs complained to the nursing staff that Armijo had not been bathed in the community bathtub. Although there appears to have been some controversy over whether Armijo should be bathed in the community bathtub in light of his diagnosis, the nursing records from June 30 through July 5, 1993, indicate that Armijo had one tub bath and one partial bath in his bedroom. From July 6 through July 21, 1993, the records indicate that Armijo received either partial or tub baths daily. The records further indicate that Armijo received dental care 12 of the 15 days during this period, and on July 12, a dentist performed certain services to ensure Armijo's comfort. Nurse Ricky Cooks ("Cooks") corroborated the documentary evidence, stating Armijo was given bed and whirlpool baths on alternate days. He further testified that he regularly changed Armijo's sheets and bed chuck as necessary. Following Armijo's transfer to the Dallas VA Medical Center on July 22, the nursing progress notes and flow sheets indicate that the patient continued to receive regular bath and oral care.
The record also indicates that the nursing staff responded to Armijo's medical needs. On July 6, for example, Plaintiffs suspected Armijo had attempted to commit suicide in his hospital bed. Plaintiffs reported the event to the nursing staff, and in response, Armijo was evaluated by a psychologist in the emergency department and was eventually returned to the nursing unit. Representatives from both the psychological and social services departments met with the family on July 7, 1993, and again on July 14-15, 1993. On July 17, Naab reported that Armijo's eyes appeared infected. In response, a senior resident examined him and sent him to the emergency room for treatment. Armijo received an antibiotic for the infection and was returned to the nursing unit.
Finally, Plaintiffs alleged that the nursing staff failed to administer food and medicine properly and failed to change Armijo's catheter, forcing the family to undertake these responsibilities. A patient in the final stages of AIDS lacks a normal appetite and in many cases finds it difficult to eat. With these concerns in mind, Armijo received a feeding tube for the delivery of nourishment and medication for his comfort. The medical records indicate that throughout his confinement in the nursing home and hospital, Armijo received nutritional status reports by Registered Dieticians, and the nursing staff made entries in the progress report notes regarding the amount of food Armijo took at his means, and whether or not the family was assisting in helping him to eat.
The evidence indicates that Plaintiffs changed Armijo's catheter on numerous occasions. Armijo was given a "condom" catheter that fits on the outside of the penis to reduce the chances of infection associated with an internal or "Foley" catheter. The condom catheter more readily falls out of place, causing the spillage of urine onto the bed chuck and the surrounding area. Nurse Gregory Brown ("Brown") testified that he demonstrated to Armijo's daughter the proper method to change the catheter, and Armijo's daughter "willingly took direction, instruction, and was interested in it." Brown further testified that the family never objected, and that he never witnessed any unwillingness of the family to participate in Armijo's care in this regard.
The court ordered the parties to submit their amended proposed findings of fact and conclusions of law on March 26, 2001. The government filed their amended proposed findings of fact and conclusions of law on May 1, 2001. On May 3, 2001, the court granted Plaintiffs additional time to file their amended findings of fact and conclusions of law. Plaintiffs submitted their proposed findings of fact and conclusions of law on May 14, 2001. The court finds Plaintiffs' Proposed Findings of Fact and Conclusions of Law inadequate. Nowhere do Plaintiffs provide any legal authority for their conclusions. Instead, Plaintiffs make cursory reference to such legal concepts as "duty" and "ordinary care." Unfortunately, Plaintiffs' failure to brief appropriately the factual and legal issues unreasonably delayed the ultimate disposition of this case. Moreover, Plaintiffs have never articulated any clear-cut theory of recovery. This failure has caused the court to speculate on Plaintiffs' possible theories of recovery, thus creating further delay.
The Federal Tort Claims Act ("FTCA") provides a statutory cause of action against the United States for the tortious conduct of its employees "in the same manner and to the same extent as a private individual under like circumstances . . . ." 28 U.S.C. § 2674. Under the FTCA, the court applies the substantive law of the state "where the act or omission occurred." 28 U.S.C. § 1346(b); Crider v. United States, 885 F.2d 294, 296 (5th Cir. 1989) (citing Rayonier, Inc. v. United States, 352 U.S. 315, 318 (1957)). Because all of the alleged acts and omissions occurred in Texas, Texas state tort law governs the question of the Defendant's liability., See United States v. Muniz, 374 U.S. 150 (1963).
As an initial matter, Defendant contends that Naab and her children may not recover for any alleged harm to Armijo except as "bystanders." See, e.g, Edinburg Hospital Authority v. Trevino, 941 S.W.2d 76 (Tex. 1997) (holding Texas's bystander cause of action precludes recovery in medical malpractice cases). Although not contested by Plaintiffs, this is not a complete statement of the law. First, the Texas survival statute provides a cause of action for the "heirs, legal representatives, and estate of the injured person." Tex. Civ. Prac. Rem. Code § 71.021(b) (Vernon 1997). The survival statute allows a claimant to bring suit as a representative of the decedent's estate. Thus, Naab is entitled to recover, on Armijo's behalf, those damages which Armijo sustained as a result of Defendant's alleged wrongful conduct.
Second, in Whittlesey v. Miller, 572 S.W.2d 665, 668 (Tex. 1978), the Texas Supreme Court recognized an independent cause of action for loss of consortium that arises as the result of an injury caused to a spouse by a negligent tortfeasor. Under this theory, Texas courts recognize the right of the injured party's spouse to recover, in appropriate circumstances, for loss of support, services, love, companionship, society, affection, sexual relations, and solace. Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993). Texas courts also recognize a child's cause of action for loss of consortium of a parent who sustains serious but non-fatal injuries. The damages recoverable by children for loss of parental consortium include the loss of the parent's "love, affection, emotional support, services, companionship, care and society." Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex. 1990). Thus, Naab and her children are entitled to recover, in their own capacities, for any losses sustained as the result of Armijo's injuries, if such injuries are caused by Defendant's negligent conduct.
Finally, the Texas wrongful death statute provides a separate cause of action for the "exclusive benefit of the surviving spouse, children, and parents of the deceased." Tex. Civ. Prac. Rem. Code § § 71.001, 71.002, 71.004(a) (Vernon 1997). At first blush, it appears Plaintiffs may prosecute their claims under this statute. The plain language of the statute, however, states that the relatives are entitled to recover damages, on their own behalf, "for damages arising from an injury that causes an individual's death." Tex. Civ. Prac. Rem. Code § 71.002(b) (emphasis added); see Johnson v. City of Houston, 813 S.W.2d 227, 229 (Tex.App.-Houston [14th Dist.] 1991, writ denied) (distinguishing damages for wrongful death from damages sustained by decedent). The court finds it unequivocally clear from Plaintiffs' Third Amended Complaint and the trial itself that Plaintiffs cannot contend that the allegedly inadequate care caused Armijo's death. Moreover, the record and testimony at trial necessarily established that the care extended to Armijo did not cause his death. Accordingly, the court determines that the Texas wrongful death statute does not provide an independent cause of action under which Plaintiffs may proceed.
Although Plaintiffs do not cite either the Texas survival statute or provide authority establishing their loss of consortiums claims in either their Third Amended Complaint or their Proposed Findings of Fact and Conclusions of law, the court believes Plaintiffs' theory of the case falls within these provisions. The court notes, however, that under Texas law, survival causes of action are derivative of the decedent's right to recover in his own capacity had the decedent lived. See Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992); Diaz v. Westphal, 941 S.W.2d 96, 98 (Tex. 1997) (stating plaintiffs right to maintain statutory wrongful death and survival claims are entirely derivative of decedent's right to have sued for his own injuries immediately prior to death). Like the statutory survival cause of action, the consortium claims of the deprived spouse and children is derivative of the impaired spouse's cause of action because the plaintiffs must first establish liability to the impaired spouse. Reagan, 804 S.W.2d at 667. With these principles in mind, the court considers the substance of Plaintiffs' malpractice claim.
Under Texas law, plaintiffs must prove, by a preponderance of the evidence, the following elements of a claim for medical malpractice: (1) a legally cognizable duty requiring the Defendant to conform to a certain standard of conduct for the protection of another against an unreasonable risk; (2) a failure by the Defendant to conform to the required standard; (3) resulting in actual injury to the Plaintiff, and (4) a reasonably close causal connection between the Defendant's conduct and the Plaintiffs resulting injury. Cloys v. Turbin, 608 S.W.2d 697, 700 (Tex.App.-Dallas 1980, no writ); Preble v. Young, 999 S.W.2d 153, 155 (Tex.App.-Houston [14th Dist.] 1999, no writ).
The threshold issue in a cause of action for medical malpractice is the standard of care. Hall v. Tomball Nursing Ctr., Inc., 926 S.W.2d 617, 620 (Tex.App.-Houston [14th Dist.] 1996, no writ). A health care provider has the duty to exercise that degree of care which a health care provider of ordinary prudence and skill, practicing in the same or a similar community, would have exercised in the same or similar circumstances. Bowles v. Bourdon, 219 S.W.2d 779 (Tex. 1949). The standard of care must be established through expert testimony unless the mode or form of treatment is a matter of common knowledge or is within the experience of a lay person. Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977); King v. Flamm, 442 S.W.2d 679, 681 (Tex. 1969). The burden of proof is on the plaintiff to establish that the health care provider has undertaken a course of conduct or form of treatment which a reasonable and prudent member of the medical profession would not have undertaken under the same or similar circumstances. Hood, 554 S.W.2d at 165.
After having weighed the evidence and considered the credibility of the witnesses, the court concludes that Plaintiffs have not established, by a preponderance of the evidence, a failure by the Defendant to conform to the requisite standard of care. Plaintiffs failed to provide any expert testimony to establish that the nursing personnel at the Dallas VA Hospital provided a level of care beneath that which a health care provider of ordinary skill and prudence would have exercised in similar circumstances. Instead, Plaintiffs relied on their own observations and the testimony of defense expert Sue Sebasco, RN, ("Sebasco") to attempt to prove the first and second elements of their negligence claim.
Sebasco admitted that certain of the allegations made by Plaintiffs and by the representatives of the AIDS Interfaith Network, if taken as true, would constitute a breach the standard of care for nursing. For example, Sebasco stated that it would be breach of the standard of care for nursing if it were true that Armijo was not turned in his bed for a long period of time. Similarly, Sebasco stated that it would be a breach of the standard of care if it were true that Armijo's room was not cleaned for four to five days at a time. Sebasco made similar statements regarding the standard of care for nursing in other areas of patient care. Based on her review of the Armijo's medical records, however, Sebasco ultimately concluded that these allegations were unfounded.
Defendant objected to the introduction of the Robin Sullinger's ("Sullinger") and Rardin's observations at trial on the basis of hearsay, and Plaintiffs were then unable fit the testimony within one of the exceptions to the hearsay rule. Specifically, Defendant objected to any account made by Sullinger or Rardin concerning the condition of Armijo's room or their observations concerning the quality of nursing care contained in Plaintiffs Exhibit No. 53, subparts 4 and 5. Sullinger and Rardin did not testify' at trial, nor did any of the other representatives from the AIDS Interfaith Network who had access to Armijo's room. The court finds that Plaintiffs Exhibit 53, subparts 4 and 5 do not fall within Fed.R.Evid. 803(6), nor was any predicate laid. Accordingly, the court finds that statements and observations made by Sullinger and Rardin constitute inadmissible hearsay testimony. Accordingly, any accounts or observations made by Sullinger or Rardin are disregarded. Moreover, even if this evidence were admissible, the court does not believe that the testimony of a witness who has only a snapshot of Armijo's condition is more credible than personnel who observed him on a daily basis.
The court, having reviewed the medical records, also finds no evidence of actionable malpractice. As set out in the findings of fact, the medical records and nursing progress notes indicate that Armijo was turned at the appropriate intervals, bathed regularly, and received regular dental care. The nursing progress reports further demonstrate that Armijo was fed and given his medications at the appropriate times. In addition to the documentary evidence, Nurse Cooks testified that he and other nurses regularly gave Armijo bed and whirlpool baths, regularly changed his sheets and bed chuck, routinely worked on his range of motion, and otherwise responded to his needs. Further, two witnesses responsible for the hospital's janitorial services testified that they regularly cleaned Armijo's room, mopped the floors, cleaned the commode, and emptied the trash. Based on this evidence, and the credibility of the defense witnesses, the court concludes that the quality of nursing care was not deficient.
Moreover, the court finds that contrary to Plaintiffs' allegations, the nursing staff and medical personnel were appropriately responsive to Plaintiffs' complaints. Despite Armijo's grim prognosis, the medical personnel at the hospital went to great lengths to meet his medical needs. For example, immediately after Rardin and Naab expressed concern regarding Armijo's skin, Director of Nursing Suzanne Olsen called in a nursing specialist to make an examination. Although the nursing specialist found no evidence of skin deterioration, she had Armijo examined a second time by a dermatologist. During his stay in the nursing unit, Armijo visited the emergency room at least two times. On July 21, 1993, Naab noticed that Armijo's eye appeared irritated. Armijo was immediately sent to the emergency room to have his eye examined. He again visited the emergency room on July 21, 1993, when his family feared that he might attempt suicide. In response, Armijo was counseled by a psychologist and social workers from the hospital visited with the family. The court finds in the medical record numerous other examples of responses made by the nursing staff to address Plaintiffs' concerns in a timely and professional manner.
Against the weight of this evidence, Plaintiffs submit only their own testimony and a number of photographs that they contend corroborate their allegations. The court has carefully examined the photographs and finds that some of the photographs corroborate Plaintiffs' testimony that Armijo's room was cluttered; however, the court also notes that the photographs do not show that the room was filthy, soiled, or unsanitary. In any event, clutter is not synonymous with negligence or unsanitary conditions. The court concludes that the remaining photographs do not substantiate Plaintiffs' allegations of negligence.
Moreover, during the presentation of evidence at trial, the court observed the emotional demeanor of the Plaintiffs and determined that their emotional states did not permit them to assess the evidence in an objective manner. For example, Naab maintained that Government Exhibit 31 ("Gov. Ex.") shows that Armijo's head was not elevated above his body to ensure that he was breathing properly. The photograph plainly demonstrates that Armijo's head is elevated above his body. When asked to describe the photograph, Naab nevertheless refused to acknowledge that Armijo's head was resting at the top of the mattress, elevated above the rest of his body. Similarly, Naab alleged Gov. Ex. 28 shows a suctioning tube that the nurses placed in bedside drawer instead of above the bed. Upon inspection, however, the photograph actually shows the cord that was connected to the nurse call button. The record is replete with numerous other examples of discrepancies between Plaintiffs' testimony and the documentary evidence. Plaintiffs' testimony also conflicts with the testimony of the several nurses, doctors, and other hospital personnel who denied at trial that Armijo received substandard medical care. To accept Plaintiffs' versions of the events, the court would have to find some type of mass conspiracy on the part of the medical personnel at the Dallas VA Hospital. Such a conspiracy is not supported by the record, and the court cannot make such a conclusion.
The court does not question Plaintiffs' sincerity in making these allegations; however, it also believes it not uncommon for family members to have higher expectations of what an objective person would have in situations concerning the quality of care of their loved ones. The court believes such is the situation with the Plaintiffs in this case. The court, for the reasons previously stated, concludes Plaintiffs have not proved that the nursing care extended to Armijo failed to conform to the required standard.
Plaintiffs also failed to satisfy the proximate cause element of their claims. To be a proximate cause of an injury, the negligent act must have set in motion a natural and unbroken chain of events that led directly and proximately to a foreseeable injury or result. Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex. 1965). Under Texas law, proximate cause consists of two elements: (1) cause in fact and (2) foreseeability. Missouri Pacific Railroad Co. V. American Statesman, 552 S.W.2d 99, 103 (Tex. 1977). To be a cause in fact, the negligent act or omission must have been a substantial factor in bringing about the injury, without which no harm would have occurred. Texas Pac. Ry. Co. v. McCleery, 418 S.W.2d 494, 497 (Tex. 1967). A plaintiff satisfies the foreseeability element if the she demonstrates that an actor, as a person of ordinary intelligence, should have anticipated the danger to others created by his negligent act. Clark v. Waggoner, 452 S.W.2d 437, 439-40 (Tex. 1970). In the context of medical liability, the plaintiff must establish a causal connection based upon a reasonable and medical probability, not mere conjecture, speculation, or possibility. Steinkamp v. Caremark, 3 S.W.3d 191, 199 (Tex.App.-El Paso, 1999, pet. denied).
Even assuming their evidence established a breach of the standard of care, Plaintiffs have not demonstrated that such breach proximately caused any injury to Armijo. Instead, the evidence adduced at trial demonstrated that Armijo was in the terminal stages of AIDS and had very little time left to live. The medical personnel informed Plaintiffs that Armijo could expect to live no longer than a few months, and that there were no curative treatment options. The evidence conclusively established that nothing involved in Armijo's nursing care caused his death or shortened his life. Absent any other evidence of proximate cause, and absent sufficient evidence that Defendant breached the standard of care, the court concludes that Plaintiffs failed to prove their medical malpractice claim.
III. Conclusion
For the reasons stated herein, the court finds in favor of the Defendant. In light of the court's findings and conclusions herein, it will render judgment against Plaintiffs by separate document as required by Fed.R.Civ.P. 58. Accordingly, all allowable and reasonable costs are assessed against Plaintiffs.