Hawkins et al v. Nexion Health Management, Inc. et al

Filing 161

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 141 Report and Recommendations ORDERING that 105 Motion for Summary Judgment is DENIED. Signed by Judge Rodney Gilstrap on 5/19/2015. (sm, )

IN THE UNITED STATES DISTRICT COURT
OF THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
STANLEY HAWKINS, INDIVIDUALLY §
AND AS INDEPENDENT EXECUTOR §
OF THE ESTATE OF ELIZABETH
§
PAIGE HAWKINS, DECEASED
§
§
v.
§
§
NEXION HEALTH MANAGEMENT, §
INC., ET AL.
§

No. 5:13-CV-121

ORDER ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The above-entitled and numbered civil action was heretofore referred to United States
Magistrate Judge Caroline M. Craven pursuant to 28 U.S.C. § 636. The Report of the Magistrate
Judge which contains her proposed findings of fact and recommendations for the disposition of such
actions has been presented for consideration. Defendants filed objections to the Report and
Recommendation. Also before the Court is Plaintiff’s response to the objections.
BACKGROUND
Stanley Hawkins, Individually and as Executor of the Estate of Elizabeth Paige Hawkins,
Deceased (“Plaintiff”) filed this lawsuit against Nexion Health at Bogata, Inc. d/b/a Regency
Healthcare and Rehabilitation Center at Red River (“Regency”) as well as Nexion Health Leasing,
Inc. (“Nexion Leasing”); Nexion Health of Texas, Inc. (“Nexion Texas”); Nexion Health, Inc.
(“Nexion Health”); and Nexion Health Management, Inc. (“Nexion Management”) (collectively
“Nexion Defendants”). Plaintiff asserts Regency and the Nexion Defendants negligently proximately
caused the death of Plaintiff’s wife while she was a resident at Regency.
Nexion Defendants moved for summary judgment, asserting (1) Plaintiff’s vicarious liability

claims against them should be dismissed because they did not control the activities of Regency; (2)
Plaintiff’s direct negligence claims against Regency should be dismissed because they rely on actions
of four employees taken outside the scope of those employees’ duties, and Plaintiff has no claim for
negligence related to Mrs. Hawkins’ glucose monitoring; and (3) Plaintiff’s negligence per se claim
should be dismissed.
REPORT AND RECOMMENDATION
On April 27, 2015, the Magistrate Judge issued a 29-page Report and Recommendation,
recommending Nexion Defendants’ Motion for Summary Judgment be denied. Nexion Defendants
object to the Report and Recommendation based on its failure to grant summary judgment on three
grounds: (1) vicarious liability; (2) glucose monitoring; and (3) negligence per se. They do not
challenge the Recommendation regarding scope of employment.
On the first issue, Nexion Defendants contend there is insufficient evidence that any of the
Nexion Defendants actually had the right to control the details of the work at issue – employees’
alleged actions in allowing Mrs. Hawkins to leave the facility and the administration and monitoring
of glucose testing. Among other things, Nexion Defendants argue the deemed admissions stating
that Nexion Texas and Nexion Health employ the nurses at Regency do not establish control over
the details of the nurses’ work.
Next, Nexion Defendants assert the Report and Recommendation relies on inadmissible
unsworn expert reports to find an issue of fact regarding glucose monitoring. According to Nexion
Defendants, there is no admissible evidence to support Plaintiff’s claims of alleged negligence
regarding the treatment and reporting of Mrs. Hawkins’ glucose levels.
Finally, Nexion Defendants argue Plaintiff cannot maintain negligence per se claims because
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Plaintiff only alleged healthcare liability claims under Texas law.
DE NOVO REVIEW
The Court conducts a de novo review of the Magistrate Judge’s findings and conclusions.
In their first objection, Nexion Defendants present the same arguments that were presented to the
Magistrate Judge, again asserting there is insufficient evidence regarding their control of the day-today activities of Regency. Nexion Defendants’ argument is unavailing. As noted by the Magistrate
Judge, Nexion Texas and Nexion Health have admitted, among other things, that healthcare
providers at Regency were their employees. As their employees, there is a fact issue whether these
defendants controlled the details of the work performed, including clinical care of residents such as
Mrs. Hawkins.
The Magistrate Judge also relied on a license application filed with the Department of Aging
& Disability (“DADS”), a state regulatory agency that investigates reports relative to nursing homes
in Texas. In this application, Nexion Texas, Nexion Health, and Nexion Leasing are each listed as
a “controlling person” of the “applicant,” Regency nursing home facility. Specifically regarding
Nexion Management, the Magistrate Judge detailed Plaintiff’s evidence indicating control of clinical
care at Regency, including Nexion Management’s training of employees and enforcement of policies
concerning resident care at Regency.
The Court agrees with the Magistrate Judge that there are genuine issues of material fact
regarding the various Nexion Defendant’s responsibility for supervising, training, issuing policy, and
enforcing policy regarding clinical care at Regency, all of which relate to the issue of whether the
Nexion Defendants controlled details of the work performed by the employees providing clinical
care to Mrs. Hawkins.
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The Court also finds without merit Nexion Defendants’ second objection regarding the
admissibility of the evidence relied upon by Plaintiff to support his negligence claim regarding
glucose monitoring. Despite Nexion Defendants’ objection to the unsworn expert reports of
Plaintiff’s expert, Dr. Joiner-Rogers, the Court finds Plaintiff presented competent summary
judgment evidence to create a fact issue regarding his claims of negligence in the treating and
reporting of Mrs. Hawkins’ glucose levels. Along with the expert reports, Plaintiff attached Dr.
Joiner-Rogers’ Declaration, wherein she declares under penalty of perjury that the foregoing is true
and correct. (Dkt No. 106, Exh. 9). In her declaration, Dr. Joiner-Rogers references her expert
reports, incorporating them by reference. Considering all of the evidence of record, the Court agrees
there are genuine issues of material fact regarding Regency’s alleged negligence in the treating and
reporting of Mrs. Hawkins’ glucose levels.
Finally, the Court is not convinced a plaintiff cannot pursue a negligence per se theory in a
healthcare liability case in Texas, as urged by Nexion Defendants for the first time in their
objections. In the original briefing before the Magistrate Judge, Nexion Defendants argued the
statutes relied upon by Plaintiff do not address the conduct of a reasonably prudent person or facility.
Citing Pack v. Crossroads, Inc., 53 S.W.3d 492, 509-10 (Tex.App.– Ft. Worth 2001, pet denied),
Nexion Defendants asserted state and federal licensure requirements cannot support a negligence per
se claim.
The Magistrate Judge considered Pack and other cases that address whether a plaintiff can
proceed on a negligence per se theory in support of claims of ordinary negligence. The Magistrate
Judge concluded Plaintiff could pursue a negligence per se theory with regard to his negligence
claims based upon alleged violations of the cited federal and state nursing home regulations. Stated
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differently, the Magistrate Judge held Plaintiff may prove negligence per se by offering proof that
the nursing home violated relevant federal and state regulations.
In their objections, Nexion Defendants now argue that a plaintiff cannot alternatively plead
Chapter 74 claims and ordinary negligence claims. See Yamada v. Friend, 335 S.W.3d 192
(Tex.2010). According to Nexion Defendants, there is no dispute Chapter 74 of the Texas Civil
Practices and Remedies Code covers Plaintiff’s claims. Nexion Defendants assert Plaintiff cannot
also allege negligence per se because any negligence claim is based on the same conduct as
Plaintiff’s healthcare liability claims.
In Yamada, the plaintiffs sued Dr. Yamada after their daughter collapsed at a water park and
later died from a heart condition. Id. at 193. Dr. Yamada filed an interlocutory appeal after the trial
court denied his motion to dismiss for the plaintiffs’ failure to file an expert report. Id. The court of
appeals held the plaintiffs’ allegations that Dr. Yamada’s actions violated medical standards of care
were healthcare liability claims, and as to those claims, the plaintiffs were required to comply with
the provisions of the Texas Medical Liability Act (“TMLA”) which require an expert report. The
plaintiffs did not dispute this holding on appeal. The appellate court also held that the same actions
by Dr. Yamada violated ordinary standards of care and were not subject to the TMLA. Id.
On appeal, the Texas Supreme Court concluded all claims against Dr. Yamada were based
on the same underlying facts, and they must be dismissed because the plaintiffs did not timely file
an expert report. The court held the plaintiffs’ claims against Dr. Yamada could not be “split into
health care and non-health care claims by pleading that his actions violated different standards of
care.” Id. at 196. “Because the [plaintiffs did] not challenge the court of appeals’ holding that their
claims against Dr. Yamada [were] in part health care liability claims and based on facts covered by
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the TMLA,” the court held the same facts could not alternatively be maintained as ordinary
negligence claims. Id. at 196-97.
The cases relied upon by the Nexion Defendants in their objections involve a plaintiff’s
failure to file an expert report as required by Chapter 74 when the essence of the lawsuit was a
healthcare liability claim. See also Buchanan v. O’Donnell, 340 S.W.3d 805, 811-12 (Tex. App.–
San Antonio 2011, no pet.)(stating the plaintiff’s negligence per se claims implicated standards of
care and were properly dismissed due to the plaintiff’s failure to serve an expert report as required
by Chapter 74 of the Texas Civil Practice & Remedies Code). Plaintiff asserts the Buchanan court
did not foreclose the right to pursue negligence per se in the context of a healthcare liability case.
Rather, the court noted that resolution of the negligence per se claim would likely require expert
testimony to establish whether the defendants’ conduct breached the standards of care, even if those
standards are statutory, as the plaintiffs had claimed. Id. at 812.
Here, Plaintiff is not attempting to change the substantive basis of his claims in order to avoid
application of the TMLA. Nor is Plaintiff attempting to circumvent the requirement of an expert
report by substituting evidence of a violation of a statute. See Shelton v. Sargent, 144 S.W.3d 113,
122 (Tex.App.– Ft. Worth, pet denied). Instead, Plaintiff intends to offer expert testimony to
establish breaches of standards of care, including the standards contained in the federal and state
nursing home statutes.
The above cases do not stand for the proposition that negligence per se can never be plead
in a healthcare liability case. The court in Yamada specifically noted that “particular actions or
omissions underlying health care liability claims can be highlighted and alleged to be breached or
ordinary standards of care.” 335 S.W.3d at 197. Negligence per se is not an independent cause of
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action. It is merely one method of proving breach of duty, through proof of an unexcused violation
of a penal statute designed to protect the class of persons to which the injured party belongs. Zavala
v. Trujillo, 883 S.W.2d 242, 246 (Tex.App. – El Paso 1994, writ denied).
The Court is not convinced at this time that Texas law forecloses Plaintiff from pursuing
negligence per se under the facts of this case.
The Court is of the opinion that the findings and conclusions of the Magistrate Judge are
correct. Therefore, the Court hereby adopts the Report of the United States Magistrate Judge as the
findings and conclusions of this Court. Accordingly, it is hereby
ORDERED that Defendants’ Motion for Summary Judgment (Dkt. No. 105) is DENIED.
So Ordered and Signed on this

May 19, 2015

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