Gregorius v. Seal

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 00-50115
________________________
ELAINE GREGORIUS, Individually
and in her capacity as Executrix and
Representative of the Estate of
Hans Gregorius, and
ELIZABETH GREGORIUS,
Plaintiffs-Appellants,
versus
F.E. SEALE,* M.D., Individually, Et Al,
Defendants.
STARLITE VILLAGE HOSPITAL, INC., HOLLIE
RAMIREZ, CHARLOTTE RICKARD, also known as
Charlotte Richard; and DEBRA NICHOLS,
Defendants-Appellees.
_______________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-96-CV-331-HG)
_________________________________________________________________
April 25, 2001
Before WIENER, STEWART, Circuit Judges, and SMITH,** District Judge.
*
Although spelled “Seal” in plaintiffs’ complaints and the
district court docket sheet, the defendants’ answer and the
transcript reflect that the actual spelling is “Seale.”
**
Walter S. Smith, Jr., District Judge for the Western
District of Texas sitting by designation.
PER CURIAM***:
Appellants, the surviving family of Dr. Hans Gregorius
(“Gregorius”), bring this wrongful death/survivor action against
defendants as a result of Gregorius’s death while a patient at
Starlite Village Hospital (“Starlite”). The jury returned a
verdict in favor of the defendants, which gives rise to the present
appeal.
FACTUAL AND PROCEDURAL HISTORY
Gregorius was a licensed psychiatrist who suffered from an
addiction to alcohol and Valium. In 1992, he was voluntarily
admitted to Starlite for treatment of his addictions and was
successfully discharged approximately one month later. After a
relapse, Gregorius again admitted himself to Starlite on June 10,
1994.
Starlite is an “open” treatment facility that primarily
provides treatment for substance abuse and chemical dependency. It
is an open and voluntary facility licensed by the Texas Commission
on Alcohol and Drug Abuse and the Texas Department of Health.
Starlite engages to treat addicted patients in the least
restrictive manner possible, and recognizes both a patient’s right
to refuse treatment and a patient’s involvement and participation
in his treatment.
***
Pursuant to 5TH Cir. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH Cir. R.
47.5.4.
2
Gregorius’s primary treatment during both commitments was
provided by Dr. F.E. Seale (“Dr. Seale”). Dr. Seale had treated
addicted patients for a number of years and had authored numerous
articles regarding withdrawal patterns and treatment of cross-
addicted patients. His articles, as well as other expert
testimony, indicate that patients addicted to Valium are
susceptible to life-threatening seizures during withdrawal. The
critical period for the occurrence of such seizures is
approximately seven to ten days after withdrawal. Those addicted
to alcohol are most susceptible to hallucinations immediately after
withdrawal from alcohol.
During the first six days of treatment, Gregorius received
Phenobarbital, an anti-seizure medication. This medication was
discontinued, and no further anti-seizure medications were
prescribed or administered, even though Gregorius was approaching
the critical stage in his withdrawal treatment. Gregorius did
receive Thorazine, to address his hallucinations, and Artane, to
prevent the side effects of Thorazine. Gregorius participated in
his own treatment plan, requesting some medications and refusing
others. Gregorius requested both the Thorazine and the Artane but
refused two anti-seizure medications, Tegretol and Dilantin,
because of their side effects.
Although Gregorius initially progressed well, his condition
started to deteriorate on June 20 when he began experiencing
intermittent hallucinations. Because of this, one of the charge
3
nurses moved Gregorius from the psychiatric ward back to the
detoxification ward. Another nurse requested that Gregorius be
placed on “Q-15" watch, which required that he be observed every
fifteen minutes throughout the day and night. Gregorius agreed to
the Q-15 observation, but refused to be placed on one to one
observation because it was too restrictive. One to one observation
requires that a staff member be within arms’ length of a patient at
all times.
On the 21st, Gregorius left a group meeting unnoticed, some
time between 1:30 and 1:50 p.m. He left the building undetected
and unescorted. His absence was noticed within a few minutes, and
a search was initiated. Several hours later, Gregorius was found
at the bottom of a steep hill not far from the hospital. His shoes
were neatly laid side by side, and his shirt was folded and placed
over his shoes. When discovered, Gregorius was in the midst of a
major seizure. He later died at a nearby hospital. A subsequent
autopsy listed his death as due to a seizure disorder, while the
defendants’ expert testified that the cause of Gregorius’s death
was heat stroke.
Appellants filed suit against Starlite and various hospital
personnel asserting medical malpractice. Appellants contended that
Starlite was liable in one instance for failing to ensure that its
premises were safe. They contended that the lack of a fence led
Gregorius to fall down the steep hill, thereby leading to his
death. At the close of the plaintiffs’ case, the district court
4
granted Starlite’s motion for judgment as a matter of law on the
premises liability claim. In conformity with the jury’s verdict,
the district court entered a take-nothing judgment. Appellants
then filed a motion for new trial, which was denied by the district
court.
ISSUES
Appellants raise three issues:
(1) Did the district court err in refusing the standard of
care instruction proffered by the plaintiffs?
(2) Did the district court err in granting defendants’ motion
for judgment as a matter of law on plaintiffs’ premises
liability claim? and
(3) Did the district court err in excluding from the jury
charge plaintiffs’ contentions relating to Starlite’s breach
of its duty?
STANDARD OF REVIEW
Challenges to jury instructions are reviewed for abuse of
discretion. Battle v. Memorial Hosp. at Gulfport, 228 F.3d 544,
555 (5th Cir. 2000). If a challenge to an instruction is properly
preserved, the challenger must establish the following to obtain
reversal of a judgment:
First, the challenger must demonstrate that the charge as
a whole creates substantial and ineradicable doubt
whether the jury has been properly guided in its
5
deliberations. Second, even if the jury instructions
were erroneous, we will not reverse if we determined,
based upon the entire record, that the challenged
instruction could not have affected the outcome of the
case.
Johnson v. Sawyer, 120 F.3d 1307, 1315 (5th Cir. 1997) (internal
citation and quotation remarks omitted). If the issue is not
properly preserved, review is only for plain error. Hartsell v.
Dr. Pepper Bottling Co. of Tex., 207 F.3d 269 (5th Cir. 2000).
A district court’s decision to grant a judgment as a matter of
law is reviewed de novo. Serna v. City of San Antonio, ___ F.3d
___, 2001 WL 237241 (5th Cir. 2001); Russell v. McKinney Hospital
Venture, 235 F.3d 219, 222 (5th Cir. 2000). Judgment as a matter
of law is appropriate when “there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on
that issue.” Fed. R. Civ. P. 50(a). All evidence in the record is
reviewed, and all reasonable inferences are drawn in favor of the
non-movant. Serna v. City of San Antonio, 2001 WL at 2. In making
the de novo review, the Court may not “make credibility
determinations or weigh the evidence.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097, 2110, 147 L.
Ed. 2d 105 (2000).
DISCUSSION
The record does not support appellants’ contention that a
proper objection was made to the failure to include in the court’s
charge their “contentions” relating to Starlite’s breach of a duty
owed to Gregorius. Under Rule 51 of the Federal Rules of Civil
6
Procedure, a party must state distinctly the matter objected to and
the grounds for the objection before the jury retires to consider
its verdict. A party does not satisfy Rule 51 “by merely
submitting a proposed instruction that differs from that ultimately
given.” Hartsell, 207 F.3d at 273. Failure to make a proper
objection may be excused “when a party’s position equating to an
objection has previously been made clear to the trial judge, and
further objection would be unavailing.” Id. The record does not
contain facts to make this exception applicable. Therefore, review
of this issue is under the plain error standard.
If an issue is not properly preserved, in order to prevail on
appeal, the appellant must show:
(1) that an error occurred; (2) that the error was plain,
which means clear or obvious; (3) the plain error must
affect substantial rights; and (4) not correcting the
error would “seriously affect the fairness, integrity or
public reputation of judicial proceedings.”
Highlands Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh,
27 F.3d 1027, 1032 (5th Cir. 1994), citing United States v. Olano,
507 U.S. 725, ___, 113 S. Ct. 1770, 1779, 123 L. Ed. 2d 508 (1993).
The trial court’s instructions, as a whole, were not plainly
erroneous.
Appellants did make specific and timely objections to the
trial court’s failure to include their definition of “ordinary
care.” The definition given by the court was as follows:
“Ordinary care” when used with respect to the conduct of
the actor under consideration, means that degree of care
that an actor of ordinary prudence would use under the
7
same or similar circumstances, as the patient’s
condition, as it is known to be, may require.
The definition requested by appellants consisted of the following:
“Ordinary care,” with respect to the conduct of Starlite
Village Hospital means that degree of care that a
hospital of ordinary prudence would use under the same or
similar circumstances, as the patient’s condition, as it
is known to be, may require, including safeguarding and
protecting the patient from any known or reasonably
apparent danger from himself that may arise from his
known mental or physical incapacity.
The appellants’ definition is a modified version of that included
in a comment to 50.2 of the Texas Pattern Jury Charges (“TPJC”).
As the comment makes clear, such an instruction is optional rather
than mandatory. As the trial court’s definition was a correct
statement of the law, Appellants have failed to establish that the
charge as a whole created substantial and ineradicable doubt
whether the jury had been properly guided in its deliberations.
Even assuming the trial court’s definition was erroneous,
appellants have failed to establish that the definition given could
have affected the outcome of the case, based upon a review of the
entire record. Although appellants point to what they assert was
inappropriate care, the record reflects equally that Gregorius was
provided appropriate care in keeping with the open and voluntary
nature of the hospital and the patient’s right to refuse treatment.
Finally, there was no error in the trial court’s decision to
grant judgment as a matter of law on appellants’ premises liability
claim. A review of the entire record reflects that plaintiffs
failed to present any evidence that any condition of the hospital
8
premises was a proximate cause of Gregorius’s death. As the Texas
Supreme Court has noted in an analogous case, “Property does not
cause injury if it does no more than furnish the condition that
makes the injury possible.” Dallas County Mental Health & Mental
Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). The
premises defects identified by appellants were too attenuated to
constitute the instrumentalities causing Gregorius’s injuries.
Accordingly, the Judgment of the district court is
AFFIRMED.
9