Rheaetta F. Wilson v. Americare Systems, Inc. , 2013 Tenn. LEXIS 212 ( 2013 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 3, 2012 Session
RHEAETTA F. WILSON ET AL. v. AMERICARE SYSTEMS, INC. ET AL.
Appeal by Permission from the Court of Appeals, Middle Section
Circuit Court for Bedford County
No. 10204 F. Lee Russell, Judge
No. M2011-00240-SC-R11-CV - Filed February 25, 2013
The issue presented is whether the jury verdict against the management company of an
assisted living facility for negligence based on understaffing is supported by material
evidence. Mable Farrar’s physician prescribed Ms. Farrar a daily dose of an over-the-counter
medicine for constipation. The nursing staff at the assisted living facility where Ms. Farrar
lived did not give the medicine to her as often as prescribed. As a result, Ms. Farrar became
constipated and returned to see her doctor. Ms. Farrar’s doctor notified the nursing staff at
the assisted living facility to give Ms. Farrar three to four enemas each day beginning on May
27, 2004. A facility nurse gave Ms. Farrar one enema on the evening of May 27, none on
May 28, and one enema on the evening of May 29. Very soon after receiving the last enema
on May 29, Ms. Farrar died from a perforated colon. Her daughters filed a wrongful death
action against the nurse who gave the enema, the director of nursing at the assisted living
facility, the owner of the facility, and its management company. The suit alleged that the
negligence of the staff, the owner, and its management company caused Ms. Farrar’s
death. The jury returned a verdict finding the nurse thirty percent at fault, the director of
nursing twenty percent at fault, and the management company fifty percent at fault based on
its failure to provide sufficient personnel at the facility. The management company
appealed. The Court of Appeals reversed the jury verdict against the management company,
finding that there was no material evidence that staffing deficiencies proximately caused Ms.
Farrar’s death. We hold that the jury’s verdict was supported by material
evidence. Accordingly, we reverse the decision of the Court of Appeals and remand the case
to the Court of Appeals for review of the award of punitive damages.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed; Case Remanded to the Court of Appeals
S HARON G. L EE, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., J ANICE
M. H OLDER, C ORNELIA A. C LARK, and W ILLIAM C. K OCH, JR., JJ., joined.
Clarence James Gideon, Jr., and Alan S. Bean, Nashville, Tennessee, and Raymond W.
Fraley, Jr., Fayetteville, Tennessee, for the appellants, Rheaetta F. Wilson and Lauralyn F.
Watson.
Roger W. Dickson, Chattanooga, Tennessee, and David L. Johnson, Nashville, Tennessee,
(on appeal); Thomas Pinckney and Susan D. Bass, Nashville, Tennessee, (at trial) for the
appellee, Americare Systems, Inc.
OPINION
I.
Mable Frances Farrar lived at Celebration Way, an assisted living facility in
Shelbyville, Tennessee. Ms. Farrar was a retired school teacher who, at the age of eighty-
three, was active, happy, social, a regular church-goer, and involved with her friends and
family. Except for occasional problems with constipation, Ms. Farrar was in good
health. During the summer of 2003, she was hospitalized for four days for constipation and
afterwards spent approximately two months in a nursing home regaining her strength. When
Ms. Farrar was admitted to Celebration Way in October 2003, her physician, Dr. Alma
Tamula, prescribed Ms. Farrar one capful of MiraLAX, an over-the-counter powder laxative,
to be taken every morning for constipation. Dr. Tamula testified that she made it “crystal
clear” to the staff at Celebration Way that they must immediately notify her if Ms. Farrar
became constipated again.
Despite these orders that Ms. Farrar receive MiraLAX daily, the staff at Celebration
Way sporadically administered the medication. According to Celebration Way’s nursing
records, Ms. Farrar received only ninety-one doses of MiraLAX from October 2003 through
May 27, 2004. She received no MiraLAX in March, only five doses in April, and eleven
doses in May 2004. The actual number of doses she received is unclear because only one
bottle of MiraLAX, containing fifteen doses, was ordered and delivered to the facility for Ms.
Farrar from October 2003 through May 2004.
The treatment provided to Ms. Farrar in the days leading up to her death is
significant. On Thursday, May 27, 2004, Ms. Farrar’s daughter, Rheaetta Wilson, took her
to see Dr. Tamula because Ms. Farrar was constipated. Despite Dr. Tamula’s previous order
to the nursing staff at Celebration Way to notify her if Ms. Farrar became constipated, they
had not done so. Ms. Farrar told Dr. Tamula that it had been ten to twelve days since her last
good bowel movement. Dr. Tamula diagnosed Ms. Farrar with fecal impaction and
constipation and ordered the administration of milk and molasses enemas three to four times
a day. When advised of Dr. Tamula’s diagnosis and treatment order, a staff member at
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Celebration Way informed the doctor’s office that no one would be available to administer
an enema until 10:00 that evening. Mary Ann Steelman, a nurse and the administrator of
Celebration Way, only gave Ms. Farrar one enema on the evening of May 27. Even though
the applicable standard of care required her to chart Ms. Farrar’s symptoms and responses,
the type and volume of enema given, and the results, Ms. Steelman did not document
anything.
On Friday, May 28, 2004, despite Dr. Tamula’s orders, Ms. Farrar was not given an
enema. Ms. Farrar told Paula Gann,1 a caregiver at Celebration Way, that she was not feeling
well, she had not had a bowel movement, and “wished she could.” Ms. Gann noticed that
Ms. Farrar’s stomach was distended, and Ms. Gann overheard Ms. Steelman remark to Ms.
Farrar that “she looked like she was about to have twins.”
On Saturday, May 29, 2004, Ms. Farrar’s daughters, Lauralyn Watson and Ms.
Wilson, were with her at Celebration Way. In the afternoon, Ms. Watson called Ms.
Steelman, who was not at the facility, to tell her that “either Mother needs to go to the
hospital or she needs an enema. She’s uncomfortable.” Ms. Watson testified that Ms.
Steelman instructed her not to go to the hospital and that either she or Dottie Hunt, who was
another nurse at the facility, would come in and administer the enema. Ms. Gann observed
that when Ms. Steelman arrived at Celebration Way following Ms. Watson’s phone call, Ms.
Steelman appeared to be irritated and “stated that she was going to give Ms. Farrar the enema
so she would shit and shut up.” Kathy West, another Celebration Way employee, similarly
testified that she heard Ms. Steelman say “I’m going to give her this enema so she’ll shit and
they’ll [Ms. Farrar’s daughters] shut up.” Ms. Steelman admitted that she was “flustrated”
at the time and did not deny making the statement. Ms. Farrar’s medical records at the
facility on that date indicate that Ms. Farrar’s abdomen was very distended and that her
bowel sounds were overactive in all four quadrants. Ms. Farrar’s distention and bowel
sounds were classic signs of an intestinal obstruction for which an enema is not appropriate,
according to Dr. Deborah Robin, a Vanderbilt School of Medicine faculty member and
certified medical director for nursing homes.
Ms. Steelman administered the enema without first percussing Ms. Farrar’s abdomen
to determine whether she had an obstruction or was constipated. Ms. Steelman admitted that
giving an enema to a patient with an obstruction is inconsistent with the applicable standard
of care. After receiving the enema, Ms. Farrar’s condition began to rapidly deteriorate. Her
skin turned pale, grayish, and became moist and clammy. Her blood pressure reading was
1
Ms. Gann worked at Celebration Way from January 2004 until June or July 2004. As a caregiver,
her job was to serve dinner, pass out medications, help with patient baths, and put patients to bed. She
testified she received no training or orientation and had no supervisor.
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94/61 and she showed signs of distress. Ms. Steelman told Ms. Farrar’s daughters that Ms.
Farrar needed to get to the hospital quickly and 911 was called. When the ambulance
arrived, Ms. Farrar’s blood pressure reading was 102/70, and her oxygen saturation was
seventy-four percent, which in Dr. Robin’s opinion was “scary low.” Upon arriving at the
Bedford County Medical Center emergency room, Ms. Farrar’s blood pressure reading had
dropped to 85/48, she was not responsive to verbal stimuli, and her lower extremities
appeared mottled.2 Despite emergency treatment efforts, Ms. Farrar died at the hospital on
May 29, 2004 at 9:35 p.m. A hospital x-ray of Ms. Farrar’s abdomen revealed that her colon
was perforated. Dr. Robin testified that the enema was the cause of the perforation.
Ms. Wilson and Ms. Watson (“Plaintiffs”) filed this wrongful death action against Ms.
Steelman (the nurse who administered the enemas on May 27 and 29, 2004), Ms. Hunt (the
director of nursing), Shelbyville Residential, LLC (the owner and operator of Celebration
Way), and Americare Systems, Inc. (“Americare”), the company that had contracted with
Shelbyville Residential, LLC to provide management services for Celebration Way. The
complaint alleged numerous deviations from applicable standards of care resulting in Ms.
Farrar’s death. Among these were allegations that Americare failed to“[p]rovide adequately
trained medical staff who were capable of meeting the needs of” Ms. Farrar and that they
failed to “[p]rovide trained personnel sufficient in skill and number to provide necessary and
adequate care” to Ms. Farrar. Plaintiffs sought compensatory and punitive damages.
Both parties moved for a summary judgment. The trial court denied Defendants a
summary judgment and granted Plaintiffs a partial summary judgment based on its finding
that “[t]he defendants deviated from accepted standards of professional practice” in failing
to assess Ms. Farrar, failing to appropriately and timely notify Dr. Tamula of Ms. Farrar’s
constipation, negligently administering enemas to Ms. Farrar, and failing to administer
medications ordered by Ms. Farrar’s attending physician. The trial court, however, ruled that
there was a genuine issue of material fact regarding causation.
The case was tried to a jury over a ten-day period in April 2010. At the close of the
proof, the trial court granted Plaintiffs’ motion for directed verdict, finding as a matter of law
that the following twenty-one acts or omissions constituted a breach of the applicable
standard of care:
• Ms. Steelman’s administration of an enema to Ms. Farrar on May 29, 2004, when
signs of a bowel obstruction were present;
2
Dr. Robin explained that “mottled” is a “sort of bluish red kind of discoloration that is seen with
very low blood pressure and frequently seen before death.”
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• Ms. Steelman’s failure to follow Dr. Tamula’s orders on May 27, 2004, by giving
two ounces of milk and two ounces of molasses rather than six ounces of milk and six ounces
of molasses;
• Ms. Hunt’s failure to notify Dr. Tamula of the changes in Ms. Farrar’s condition
regarding her constipation on May 22, 24, and 25, 2004;
• Ms. Hunt’s failure to administer MiraLAX at 8:00 a.m. every day during April
2004, in the absence of a doctor’s order directing that the medication be given as needed;
• Ms. Hunt’s failure to administer MiraLAX at 8:00 a.m. every day during May 2004,
in the absence of a doctor’s order directing that the medication be given as needed;
• Ms. Steelman’s failure to chart the type, volume, and results of the enema given on
May 27, 2004;
• Ms. Hunt’s failure to highlight ambiguous doctor’s orders and contact Dr. Tamula
for a clarification;
• Ms. Hunt’s failure to document each time Ms. Farrar allegedly refused MiraLAX;
• Ms. Hunt’s failure to administer MiraLAX every morning at 8:00 a.m. during
December 2003 as ordered by Dr. Tamula;
• Ms. Hunt’s and/or Ms. Steelman’s failure to document telephone orders received
from physicians;
• Ms. Hunt’s changing Ms. Farrar’s order for MiraLAX to PRN 3 without
documentation or a corresponding order from a physician;
• Ms. Hunt’s and Ms. Steelman’s failure to call Dr. Tamula’s office to obtain criteria
to use when an order was allegedly changed to PRN;
• The unauthorized taking by Mary Gutierrez, a Celebration Way caregiver, of Dr.
Tamula’s May 27, 2004 order for enemas;
• Ms. Hunt’s administration of Fleet suppositories on May 24, 2004, without an
accompanying order authorizing administration of over-the-counter medications;
• Ms. Hunt’s and/or Ms. Steelman’s failure to notify Dr. Tamula when Ms. Farrar’s
condition changed with respect to her documented incontinence in November 2004;
• Ms. Steelman’s failure to recommend on May 29, 2004 that Ms. Farrar go to the
emergency room;
• Ms. Hunt’s failure to prepare a Request for Physician Service Form and to ask Dr.
Tamula to address whether MiraLAX was intended to be made PRN;
• Ms. Hunt’s and/or Ms. Steelman’s failure to notify Dr. Tamula before May 24,
2004, that Ms. Farrar had not had a bowel movement for a week;
• Ms. Hunt’s failure on May 25, 2004, to assess Ms. Farrar for the purpose of
determining whether she was still constipated;
• Ms. Hunt’s failure on May 26, 2004, to notify Dr. Tamula about Ms. Farrar’s
constipation; and
3
“PRN” is medical shorthand for “as needed” or “whenever necessary.”
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• Ms. Steelman’s failure on May 29, 2004, to percuss Ms. Farrar’s abdomen before
administering an enema.
The trial court held that the cause of Ms. Farrar’s death was sepsis resulting from a
perforated colon, but that it was “for the jury to determine what caused that
perforation.” The trial court instructed the jury that, as a matter of law, both Shelbyville
Residential, LLC and Americare were “legally responsible for any compensatory damages
for which Dottie Hunt and Mary Ann Steelman are legally responsible.”
The jury returned a verdict in favor of Plaintiffs, assessing fault as follows: Ms.
Steelman, thirty percent at fault; Ms. Hunt, twenty percent at fault; and Americare, fifty
percent “at fault [for] failing to provide sufficient personnel at Celebration Way” 4 at or
around the time of Ms. Farrar’s death.5 The jury awarded compensatory damages in the
amount of $300,000. The jury also found that Plaintiffs proved by clear and convincing
evidence that Ms. Steelman, Ms. Hunt, and Americare “acted either intentionally, recklessly,
maliciously, or fraudulently as those terms were defined . . . in the jury instruction on
punitive damages,” thus triggering a second, bifurcated punitive damages
proceeding. Following the hearing on the punitive damages issue, the jury awarded punitive
damages in the amount of $10,000 against Ms. Steelman; $5,000 against Ms. Hunt; and
$5,000,000 against Americare. The trial court approved the jury verdict as thirteenth juror,
finding that the evidence preponderated in favor of the verdict in all regards, and entered
judgment accordingly.
Americare appealed, raising four issues in support of its argument that it should not
have been held directly liable for failing to provide adequate staff at Celebration Way.6 The
4
The written jury verdict form specifically asked the jury “Was Defendant Americare Systems, Inc.,
at fault in failing to provide sufficient personnel at Celebration Way in Shelbyville, Tennessee, at or around
the time of the death of Mable Frances Farrar?” The verdict form further instructed the jury to assess fault
against Americare “only to the degree that you find fault based on a failure to provide sufficient personnel
at Celebration Way.”
5
Shelbyville Residential, LLC was not included on the verdict form. The final order was amended
to provide that Shelbyville Residential, LLC was “zero percent at fault, that Shelbyville Residential, LLC
is not liable to the Plaintiffs other than for the negligence of Mary Ann Steelman and Dottie Hunt.”
6
The Court of Appeals listed the four issues raised by Americare to that court as follows: (1)
“Whether the judgment against Americare should be reversed because the plaintiffs failed to present expert
testimony or other evidence to establish the applicable standard of care regarding appropriate staffing levels
for an assisted living facility”; (2) “Whether the judgment against Americare should be reversed because the
plaintiffs failed to present expert testimony or other evidence that Americare deviated from the applicable
(continued...)
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Court of Appeals reversed the jury verdict, finding there was “no material evidence to
support the conclusion that it was more probable than not that Ms. Farrar’s death was caused
by staffing decisions made by Americare.” Wilson, 2012 WL 32106, at *9. All other issues
were pretermitted. Id. We granted Plaintiffs’ application for permission to appeal.
II.
In reviewing a properly approved jury verdict, an appellate court may set aside
findings of fact by a jury in civil actions “only if there is no material evidence to support the
verdict.” Tenn. R. App. P. 13(d). In determining whether “there is material evidence to
support the jury verdict, we ‘take the strongest legitimate view of all the evidence in favor
of the verdict, assume the truth of all evidence that supports the verdict, allow all reasonable
inferences to sustain the verdict, and discard all countervailing evidence.’” Barkes v. River
Park Hosp., Inc., 328 S.W.3d 829, 833 (Tenn. 2010) (quoting Whaley v. Perkins, 197 S.W.3d
665, 671 (Tenn. 2006)). Applying this standard, this Court must reverse the Court of
Appeals’ decision and reinstate the jury verdict if we find that Plaintiffs presented material
evidence that Americare’s failure to provide adequate staffing at Celebration Way caused or
contributed to Ms. Farrar’s death. Creech v. Addington, 281 S.W.3d 363, 372 (Tenn. 2009)
(“If there is any material evidence to support the verdict, we must affirm it; otherwise, the
parties would be deprived of their constitutional right to trial by jury.”).
To prevail at trial, Plaintiffs were required to prove “(1) a duty of care owed by the
defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care
amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5)
proximate or legal cause.” Hale v. Ostrow, 166 S.W.3d 713, 716 (Tenn. 2005); accord
Barkes, 328 S.W.3d at 834. As to the causation in fact inquiry, we have observed that “[i]t
is not necessary that the defendants’ act be the sole cause of the plaintiff’s injury, only that
it be a cause.” Hale, 166 S.W.3d at 718. Regarding the proximate cause inquiry, we have
adopted a three-pronged test requiring the plaintiff to demonstrate that
(1) the tortfeasor’s conduct must have been a “substantial factor” in bringing
about the harm being complained of; and (2) there is no rule or policy that
should relieve the wrongdoer from liability because of the manner in which the
6
(...continued)
standard of care”; (3) “Whether the judgment against Americare should be reversed because the plaintiffs
failed to meet their burden of proving that any purported negligence/recklessness on the part of Americare
caused or contributed to their mother’s death”; and (4) “Whether th[e] court should set aside or reduce the
amount of punitive damages assessed against Americare.” Wilson v. Americare Sys., Inc., No. M2011-00240-
COA-R3-CV, 2012 WL 32106, at *7 (Tenn. Ct. App. Jan. 5, 2012).
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negligence has resulted in the harm; and (3) the harm giving rise to the action
could have reasonably been foreseen or anticipated by a person of ordinary
intelligence and prudence.
Id. at 719 (quoting Haynes v. Hamilton Cnty., 883 S.W.2d 606, 612 (Tenn. 1994)).
It is well established that “[c]ause in fact and proximate cause are ‘ordinarily jury
questions, unless the uncontroverted facts and inferences to be drawn from them make it so
clear that all reasonable persons must agree on the proper outcome.’” Hale, 166 S.W.3d at
718 (quoting Haynes, 883 S.W.2d at 612); see also McCarley v. W. Quality Food Serv., 960
S.W.2d 585, 588 (Tenn. 1998); McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991);
Pullins v. Fentress Cnty. Gen. Hosp., 594 S.W.2d 663, 671 (Tenn. 1979). Where the
evidence supports more than one reasonable conclusion, causation in fact and proximate
causation are issues of fact which should be decided by the jury and not the appellate
court. Pullins, 594 S.W.2d at 671. The issue of allocation of comparative fault is also a
determination of fact to be made by the jury. Hale, 166 S.W.3d at 718. With these standards
in mind, we review the evidence presented to the jury.
First, Plaintiffs presented material evidence from which the jury could reasonably
conclude that Americare provided insufficient staffing to meet the needs of the residents at
Celebration Way, and that Americare was aware of the understaffing problem. Ms. Steelman
testified that she made Americare aware that there was not enough staff at the
facility. Plaintiffs presented the following excerpt from Ms. Steelman’s video deposition
regarding her communication with Maureen Meyer, Americare’s regional operations director
and Ms. Steelman’s direct supervisor:
Q: Have you ever mentioned to Ms. Meyer that – in terms of the
responsibilities that you and Ms. Hunt have, that it’s too much for the level
of staffing?
A: They are aware of it.
Q: My question was: Did you mention it to them?
A: Yes, sir.
Q: When did you begin letting them know that in terms of what you needed to
do for the patients there just wasn’t enough staff to get it done?
A: . . . [T]hey’ve always asked at the meetings what they could do to take
some of the stuff off of us, but there’s never been a solution to taking care
of it.
Q: Before October 13th, 2003, did you let the people at Americare Systems
know that you didn’t have enough staff to get the job done right for the
patients?
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A: Yes, sir.
Q: How did you communicate that information to them?
A: They just knew — they just know that our plate is very full. I mean . . .
Q: How did you communicate to Americare Systems that there was too much
to do and too few staff to get the job done?
A: I discussed it.
Q: With whom?
A: With Ms. Meyer[].
Q: Anybody else?
A: No, sir.
Q: Did you ever send her any memos?
A: No, sir.
....
Q: Always face-to-face?
A: Yes, sir, or on the phone.
Q: Okay. And how did you communicate it to her? What examples did you
give? What problems did you identify? How did you pass that message on
to her?
A: Just that our workload is overwhelming sometimes.
Q: Okay. So why didn’t you just add some more staff, get another licensed
nurse?
A: It’s not budgeted.
(Emphasis added). Americare’s decision not to hire additional staff was money-driven,
according to Ms. Steelman:
Q: [I]f the problem is that there’s too much work for the available staff,
you’ve never sought additional licensed personnel, and you can hire
additional unlicensed personnel, why haven’t you done it?
A: I try. I try.
....
Q: If you’ve had a hard time in getting additional personal care attendants to
come to work, why haven’t you tried to fix that by hiring licensed people
instead of personal care attendants who are unlicensed, even on a part-time
basis, you know, hire an LPN for half a day? Why haven’t you tried that?
A: Because it wasn’t something that I thought would be allowed.
Q: By whom?
A: By the corporation.
Q: Why did you think they wouldn’t let you do it?
A: Because of the money difference.
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Q: Well, what messages have they ever sent to you that they wouldn’t let you
do something that was more expensive?
A: Just for budget purposes.
Maureen Meyer, Americare’s regional operations director, was responsible for
supervising the Celebration Way facility; recruiting, hiring, and training the administrator;
consulting with the director of nursing; and doing quality control by auditing patient
charts. Regarding understaffing, Ms. Meyer testified as follows:
Q: You heard the testimony . . . of Mary Ann Steelman when she said that
there was too much work for the level of staffing.
A: Yes, sir.
Q: And that she told you that.
A: Yes, sir.
Q: And that you are Americare.
A: Yes, sir.
Q: And that – Let me just make sure I understand something. Mary Ann
Steelman and Dottie Hunt in the course and scope of their employment for
Celebration Way.
A: Yes.
Q: Controlled by Americare, Inc.
A: Managed by Americare, Inc.
....
Q: You heard her [Ms. Steelman] say that. You also heard [her] testify there
were not enough people to get the job done?
A: Yes, I heard that.
Q: She told you that.
A: We’ve had multiple conversations about staffing.
Q: She says — Mary Ann Steelman says that, you, Americare, knew that
Celebration Way’s plate was very – and I’m using the word very
underscored – full.
A: I would totally agree that their plates are full.
Q: Told you, Americare, that the work was overwhelming.
A: Yes.
The only two licensed nurses on the Celebration Way staff were Ms. Steelman and Ms.
Hunt. Ms. Steelman testified that she and Ms. Hunt were “always” on call, “twenty-four
hours a day.” Ms. Meyer testified that the two licensed nursing professionals “covered a lot
of shifts” and that they were not paid overtime compensation because they were salaried
employees.
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Second, Plaintiffs presented material evidence supporting the conclusion that the lack of
adequate staffing at Celebration Way led to lapses and deviations from the applicable
standard of care. The trial court ruled that there were twenty-one acts or omissions that
constituted a breach of the standard of care. The evidence presented to the jury supports a
rational inference that Americare’s failure to staff Celebration Way with adequate personnel
to meet the needs of its patients contributed to Ms. Farrar’s death. It is a matter of reason and
common sense within the jury’s fact-finding province to infer that, in an employment setting,
if there is too much work required of too few employees, either the work will not get done
or the quality of the work will be diminished. See Estate of French v. Stratford House, 333
S.W.3d 546, 558 (Tenn. 2011) (claims that the failure of nursing home staff “to provide basic
services resulted, at least in part, from chronic understaffing of which senior management
at [the defendant nursing home] was aware” present a case where “the trier of fact could
assess the merits of the claim based upon everyday experiences”); see also Anderson v. City
of Atlanta, 778 F.2d 678, 685-86 (11th Cir. 1985) (holding that “[t]he jury could reasonably
find that a policy of understaffing resulted in the unavailability of medical personnel and
prevented individual officers from being able to do their tasks properly,” and that the
defendant city “knew or should have known that the natural consequence of this failure to
adequately staff the jail would impair proper medical care and attention necessary to protect
the health of pre-trial detainees”); Bremenkamp v. Beverly Enters.-Kan., Inc., 762 F. Supp.
884, 892-93 (D. Kan. 1991) (evidence of understaffing presented question of fact for jury on
plaintiff’s claim that nursing home resident’s injury was proximately caused by failure to
adequately staff nursing home); HCA Health Servs. of Midwest, Inc. v. Nat’l Bank of
Commerce, 745 S.W.2d 120, 125 (Ark. 1988) (proof of understaffing in hospital nursery
room supported inference and jury verdict that inadequate staffing caused newborn’s injury).
Both Ms. Steelman and Dr. Robin testified that the standard of care required that only
licensed nurses were permitted to take telephone orders from a doctor’s office. However,
Dr. Tamula’s May 27, 2004 order prescribing enemas for Ms. Farrar was taken over the
telephone by Mary Gutierrez, a nonlicensed staff member, because no licensed nurses were
at the facility. Dr. Tamula testified that she “was not very comfortable when [she] found out
that there was nobody there” who could administer the prescribed enemas “until 10:00 p.m.
that night.” Ms. Gutierrez testified that when they needed a nurse and one was not on duty,
they would call the nurses at home and “[s]ometimes they answered and sometimes they
didn’t, and sometimes we never got a return phone call.” She described an earlier incident
arising from her phone call to Ms. Steelman at home:
Earlier in time before this incident she [Ms. Steelman] had gotten angry with
me because I had called her at home. I had let her know when I first started
there that I wasn’t comfortable giving medicine to people because I was a
person off the street, no certification, no nothing. And she had left a note one
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night for me to give somebody some medication, and I called. She left a note,
and I called her, and she said, “Can you not read?” And I said, “Yes, ma’am,
I can, but you’re asking me to do something that I’m not comfortable doing so
I’m calling to make sure I hear it from you, not a piece of paper.” So she
stated, “You don’t need to call me for everything.” And it just made me feel
like, you know, this is not right because I was uncomfortable as it was to give
medication out not being certified or trained to do all of that.
According to the nursing records presented by Celebration Way, Ms. Farrar received
significantly fewer doses of MiraLAX than Dr. Tamula prescribed. Ms. Farrar was required
to have one dose every morning to prevent constipation, but she received none in March 2004
and only six doses in April. Evidence presented at trial suggested that Celebration Way
actually gave Ms. Farrar far fewer doses of MiraLAX than were recorded in its nursing
records. The owner of Reeves-Sain Pharmacy testified that during the time Ms. Farrar was
living at Celebration Way, his pharmacy had an agreement with Celebration Way to provide
medications for the facility residents. Based on Reeves-Sain Pharmacy’s records, only one
standard size bottle of MiraLAX, containing fifteen doses, was ordered and delivered on
October 13, 2007 for Ms. Farrar. There was no record of another order by Celebration Way
or dispensation by Reeves-Sain Pharmacy of MiraLAX for Ms. Farrar. Ms. Hunt admitted
that Reeves-Sain “won’t send them another MiraLAX until I order it.” Defendants presented
no proof suggesting that MiraLAX would have come to Celebration Way for Ms. Farrar from
any other source but Reeves-Sain Pharmacy. Dr. Robin, after reviewing Ms. Farrar’s medical
records and other pertinent documents, testified that Celebration Way’s “recordkeeping was
fraudulent.” Thus, the jury could have reasonably concluded that the staff at Celebration
Way chronically neglected its duty to give Ms. Farrar her prescribed MiraLAX. Dr. Robin
testified that it was “absolutely foreseeable” that Ms. Farrar would have become constipated
without the MiraLAX administered as ordered in April and May 2004.
Further, when Ms. Steelman arrived at Celebration Way on May 29, 2004, she was
irritated, upset, and, in her own word, “flustrated.” Ms. Steelman had recently finished
working a nearly twelve-hour shift from 10:00 p.m. on Friday, May 28 to 9:30 a.m. on
Saturday, May 29th. She testified that she covered the shift that night for an absent
employee. It was the Saturday of Memorial Day weekend and she and her family had been
boating “on the lake”7 when she received the call from Ms. Watson to come in and give Ms.
Farrar the enema. Several witnesses attested that they heard Ms. Steelman say angrily that
she was going to give Ms. Farrar the enema “so she’ll shit and they’ll shut up,” a statement
Ms. Steelman did not deny making. Ms. West testified that she witnessed Ms. Steelman
7
Ms. Steelman did not testify as to what lake they were boating on, but only that it was about thirty
minutes from the Celebration Way facility.
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filling the enema bottle, which had a capacity of sixty-four ounces, and that after she had
filled it, the bottle “was filled to the brim.” At trial, Ms. Steelman did not deny saying that
she was “going to give her the whole damn thing to shut her up.”8 Dr. Robin testified that
to have given an enema of sixty-four ounces under the circumstances would be “an
outrageous violation of the standard of care.” Ms. Steelman proceeded to administer the
enema, and shortly thereafter, Ms. Farrar died from a perforated colon.
Ms. Steelman failed to take the time to properly chart the type, volume, and results of the
enema she gave Ms. Farrar on May 27, 2004. She failed to see that the three or four enemas
per day ordered by Dr. Tamula were given. No one at the facility notifed Dr. Tamula that
Ms. Farrar was constipated even though Dr. Tamula’s order directed them to notify her if Ms.
Farrar became constipated. Dr. Robin described the care given to Ms. Farrar in this case as
“very reckless” and “outrageous.” When asked why she used the term “outrageous” to
describe the care and treatment given Ms. Farrar, Dr. Robin replied:
Because it would have been so easy to do the right thing. It would have been
so easy to obtain the MiraLAX, so easy to administer it per order, so easy to
call Dr. Tamula if there was a problem. It just – I don’t really see any reason
for the type of care that she received.
Finally, Plaintiffs presented material evidence supporting the conclusion that the
deviations from the applicable standard of care were substantial factors in Ms. Farrar’s
death. According to Dr. Robin, the nurses’ failure to give Ms. Farrar the prescribed
MiraLAX every day caused her to become constipated. As a result of the constipation and
fecal impaction, Ms. Farrar needed to have multiple enemas. The enemas, however, were
not given as directed. Instead of giving Ms. Farrar three to four enemas a day, the nursing
staff at the facility only gave Ms. Farrar one enema Thursday night and then a final, fatal
enema on Saturday night. Dr. Tamula testified that the likely cause of Ms. Farrar’s death was
colon perforation due to the enema.
As the above summary indicates, there was material evidence supporting a reasonable
conclusion that Americare chronically understaffed Celebration Way, and that Americare was
aware of the problem—including the testimony of Celebration Way’s Administrator, Ms.
Steelman, that she “let the people at Americare Systems know that [she] didn’t have enough
staff to get the job done right for the patients,” that “there was too much to do and too few
staff to get the job done,” and their “workload is overwhelming sometimes.” Plaintiffs also
established chronic, numerous, and egregious violations of the standard of care by
Celebration Way staff in their care and treatment of Ms. Farrar, including repeated failures
8
Ms. Steelman stated, “[I]f I said it, I didn’t mean anything by it. And I don’t recall saying it.”
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to give her prescribed doses of MiraLAX, which led to her constipated and impacted
condition, and the twenty-one acts or omissions established as violations as a matter of law
by the trial court’s directed verdict, none of which have been challenged on appeal. Further,
Plaintiffs established a causal relationship between the violations of the standard of care and
Ms. Farrar’s death.
Causation is a question of fact for the jury. Hale, 166 S.W.3d at 718; McClenahan, 806
S.W.2d at 775; Pullins, 594 S.W.2d at 671. It is the jury’s province to determine the facts
and the inferences to be drawn from them. Conaway v. N.Y. Life Ins. Co., 102 S.W.2d 66,
68 (Tenn. 1937); see also Martin v. Washmaster Auto Ctr., U.S.A., 946 S.W.2d 314, 317
(Tenn. Ct. App. 1996) (“The jury is permitted to reasonably infer facts from circumstantial
evidence, and these inferred facts may be the basis of further inferences of the ultimate fact
at issue.”). The question is whether the proof, taking the strongest legitimate view of all the
evidence in favor of the verdict, assuming the truth of all evidence that supports the verdict,
allowing all reasonable inferences to sustain the verdict, and discarding all countervailing
evidence, see Barkes, 328 S.W.3d at 833, amounted to material evidence supporting the
jury’s finding that Americare’s understaffing was more probably than not a substantial factor
in bringing about Ms. Farrar’s death. See Hale, 166 S.W.3d at 719. We conclude that
material evidence supported the jury’s finding that Americare’s conduct was a substantial
factor in causing Ms. Farrar’s death.9
III.
Because we find that the jury’s verdict is supported by material evidence, we reverse the
decision of the Court of Appeals and reinstate the jury verdict. This case is remanded to the
Court of Appeals for review of the award of punitive damages against Americare. Costs on
9
Plaintiffs presented the testimony of medical experts, including Dr. Robin, Dr. Tamula, and
Registered Nurses Steelman and Meyer, to support their claim of Americare’s understaffing. Because we
hold that the Plaintiffs presented material evidence that understaffing by Americare was a substantial factor
in causing Ms. Farrar’s death, we need not address Americare’s arguments that the judgment against
Americare should be reversed because Plaintiffs failed to present expert testimony or other evidence to
establish the applicable standard of care regarding appropriate staffing levels for an assisted living facility
and that Plaintiffs failed to present expert testimony or other evidence that Americare deviated from the
applicable standard of care. Further, we need not address the question of whether expert testimony was
required in this case because Plaintiffs presented sufficient proof, including expert testimony, to support their
claim of understaffing.
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appeal are assessed to the appellee, Americare Systems, Inc., for which execution may issue
if necessary.
_________________________________
SHARON G. LEE, JUSTICE
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