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Sunday, August 25, 2019

Ninth District upholds denial of Golden Years Assisted Living's dismissal in negligence case


By Charmaine Little | Jul 24, 2018

BEAUMONT – The Court of Appeals for the 9th District of Texas at Beaumont decided July 12 that a negligence case against a living assisted center shouldn't be dismissed.

Justice Leanne Johnson delivered the opinion.

The appeals court confirmed the ruling from the 128th District Court in Orange County that denied Golden Years Assisted Living’s motion to dismiss a case against it and the denial of Golden Years’ objections to plaintiff Priscilla J. Richard’s expert reports that stated both facilities breached their standard duties of care.

According to the opinion, Richard initially sued Golden Years and New Century Hospice in 2015 after her husband, Bruce, suffered injuries that ultimately required the amputation of his foot while in their care. Priscilla filed the lawsuit on behalf of her husband after they were told his injuries wouldn’t have been as extreme if he had received proper care sooner.

Golden Years appealed the lower court’s decision stating that it abused its discretion and infringed on Chapter 74 regulations regarding expert reports. The appeals court explained multiple reasons it agreed with the lower court’s decision (after it proved that it did actually have jurisdiction over the case since a final judgment wasn’t entered). Chapter 74 says the trial court has to grant a motion that tests an expert report if it doesn’t prove good faith to obey the definition of an expert report.

Concerning a causal relationship, the appeals court said it's created “by proof that the negligent act or omission was a substantial factor in bringing about the harm and without which the harm would not have occurred,” according to the opinion. 

It also stated that grouping defendants together when they both had the same responsibilities for the plaintiff doesn’t make expert reports inadequate.

The appeals court didn’t find any issue with the trial court’s decision that the expert reports were enough to prove the accused breach in standard of care. While Golden Years said Dr. Michael Streitmann, the plaintiff's expert, didn’t prove causation, the appeals court said Golden Years failed to make the claims in its motion to dismiss after Priscilla filed Streitmann’s report and its addendum.

Included in the lawsuit were nurse Erika L. Aguirre and Streitmann’s reports. They both stated Golden Years and New Century breached their standard of care, including their failure to keep a correct medical record for Bruce, complete proper evaluations, create an adequate service plan, and not properly managing his injury.

Golden Years responded with an objection to the report and a motion to dismiss in June 2016. It said the expert reports were inadequate because they didn’t determine if fault was with Golden Years or New Century. It also said Streitmann’s claim concerning causation was conclusory. Golden Years also filed a motion to dismiss for failure to file an adequate expert report in which it repeated its issues with the experts' reports. It pointed out that Chapter 74 says considering this, the case must be dismissed with prejudice.

Priscilla filed her own response for the motion to dismiss in August 2016 and said that more information is needed in discovery. She added that the notion that Golden Years and New Century treated her husband isn’t enough to cancel out the expert’s opinions. She added that both reports show good faith under Chapter 74. She then asked for a 30-day extension for the chance to fix any issues.

The trial court first responded and granted the extension, saying that the reports do need to be detailed and explain the exact breaches of standard of care for Golden Years and New Century. Both Aguirre and Streitmann made addendums to their reports and provided specific issues to prove the breach of care.

Golden Years then filed a second motion to dismiss in October 2016 and said the reports failed to detail the treatment Bruce should have received but didn’t. The trial court signed an order to deny the motion to dismiss on Jan. 11, 2017. Golden Years filed a motion for entry of order asking the court to enter a new order denying the motion to dismiss. 

Golden Years said around May 1, 2017, it was told the judge hadn’t made a decision yet but would send a notice once she did. Golden Years filed a notice of appeal but it was denied because it was considered untimely. The trial court then signed an order and denied Golden Years objection to the expert report and motion to dismiss, which Golden Years appealed.

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