Son sues 21 businesses after mom breaks ankle

Michelle Massey, East Texas Bureau Jun. 5, 2008, 3:00am

Brian Eberstein

MARSHALL – Less than three weeks into her stay at a nursing home, 68-year-old Ruth Bapties broke her ankle during a physical therapy session. Her son believes the nursing home's actions were negligent and violated a Texas penal statute passed to protect the elderly.

On behalf of his mother, Bapties filed suit against Heritage Manor Healthcare Center and 20 companies that are involved in ownership or management of the nursing homes on June 3, in the Marshall Division of the Eastern District of Texas.

A month prior to the incident, Bapties was admitted to Plano Medical Center for weakness and low sodium. While still recovering in the hospital, Bapties developed congestive heart failure. Bapties was also obese and had signs of a previous injury. The hospital discharged Bapties to Heritage Nursing Home.

When she arrived, a physical therapy evaluation said she needed assistance with locomotion, transfers, toilet use, balance and mobility. Bapties entered a physical therapy plan that included training for mobility and gait with 45 to 70 minutes of daily physical therapy.

However, about three weeks into the therapy plan, Bapties developed heel pain and her ankle became red, bruised and swollen. A day after the injury, Bapties returned to the hospital for X-rays which showed her ankle was fractured. The hospital performed surgery to stabilize the ankle and Bapties returned to the nursing home.

According to court records, Bapties ' son believes the nursing home was negligent for failing to properly carry out their medical responsibilities in accordance with the accepted standards of medical practice.

The plaintiff states the defendants were negligent through failure to perform ongoing nursing assessments, failure to make appropriate nursing diagnoses, and failure to develop, implement, evaluate and update a comprehensive plan of care.

Based upon the expert opinion of Dr. David E. Mansfield, the plaintiff accuses the defendants of failure to provide safe physical therapy with only partial weight bearing for a patient such as Bapties, who is deconditioned, obese and had signs of a previous ankle fracture.

The plaintiff believes the defendants acted with "conscious and willful indifference" to his mother's safety and well-being and therefore, he is seeking exemplary damages. The suit is also seeking damages for physical pain and suffering, mental anguish, disfigurement, physical impairment, medical expenses, costs of suit, pre and post judgment interest.

The plaintiff is seeking a jury trial.

Dallas attorneys Amy Witherite, Brian Eberstein, and Shelly Greco of the law firm Eberstein and Witherite LLP are representing the plaintiff.

U.S. District Judge T. John Ward has referred the case to Magistrate Judge Charles Everingham.

Case No: 2:08cv00225

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