Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Howard v. USA

United States District Court, E.D. Arkansas, Western Division

March 31, 2019

RACHEL HOWARD, as Executrix of the Estate of C.R. Howard, deceased PLAINTIFF
v.
USA DEFENDANT

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          KRISTINE G. BAKER, UNITED STATES DISTRICT JUDGE

         This matter came before the Court for a bench trial.[1] Plaintiff Rachel Howard (“Ms. Howard”), executrix of the estate of C.R. Howard, was represented by counsel, and defendant the United States of America (the “Government”) was represented by counsel. Ms. Howard's claims result from the tragic death of her husband, Mr. Howard. Pursuant to Federal Rule of Civil Procedure 52(a), the Court makes the following specific findings and conclusions. The Court determines that Ms. Howard has not sustained her burden of proof; she is not entitled to the relief she seeks.

         I. Factual Background

         1. Ms. Howard, executrix of the estate of C.R. Howard, brings this action against the Government pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671, et. seq. This action is prosecuted in substance under the Arkansas Medical Malpractice Act, Ark. Code Ann. § 16-114-201, et seq., and the Arkansas Wrongful Death Act, Ark. Code Ann. § 16-62-102. Ms. Howard brings the lawsuit for the death of Mr. Howard and seeks damages resulting from the alleged negligence of nurses and hospital staff at the John L. McClellan Memorial Hospital (“Hospital”) in Little Rock, Arkansas.

         2. By prior Order, this Court addressed the scope of Ms. Howard's permissible claims against “staff employees/nurses” of the Hospital under the FTCA (Dkt. No. 57).

         A. Mr. Howard's History

         3. Mr. Howard was born on January 22, 1940. Def.'s Trial Ex. 1A.

         4. Mr. Howard married Ms. Howard January 9, 2009; it was not the first marriage for either of them.

         5. Ms. Howard is step mother to Teresa Howard Brooks (“Teresa Howard”) and Russell Howard, Sr., Mr. Howard's children.

         6. Prior to retirement, Ms. Howard worked as a Registered Nurse.

         7. Mr. Howard was diagnosed with multiple myeloma in 2011. Multiple myeloma is a cancer that develops from plasma cells. Multiple myeloma is an incurable type of cancer, but treatments exist to prolong and improve the quality of life for the multiple myeloma patient.

         8. Mr. Howard was collecting disability benefits from the Veteran's Administration because he was 100% disabled as a result of multiple myeloma as of January 31, 2012.

         9. Even before that, Mr. Howard received some disability benefits from the Veteran's Administration due to epilepsy. Mr. Howard had a seizure disorder for which he took medication.

         10. In 2013, medical records indicate that Mr. Howard had imaging done of his spine. He had certain pre-existing conditions related to his spine and vertebrae.

         11. In May 2014, Mr. Howard began receiving treatment for multiple myeloma from Zhifu Xiang, M.D., a hematologist with the Hospital.

         12. On January 27, 2015, Dr. Xiang started a new round of treatment on Mr. Howard and informed Mr. Howard and his family that Mr. Howard had two good years, according to the testimony of Teresa Howard.

         13. On February 10, 2015, Mr. Howard was on his fifth round of therapy for multiple myeloma. On that day, Mr. Howard received a blood transfusion. Def.'s Trial Ex. 1A, at 880. After the transfusion, Dr. Xiang instructed Mr. Howard's family to take him to a local emergency room if Mr. Howard developed a fever. Id.

         14. On that day, according to Ms. Howard and Teresa Howard, Mr. Howard asked Dr. Xiang if he still had two years to live, as Dr. Xiang had told Mr. Howard and his family during the January 27, 2018, meeting. According to Ms. Howard and Teresa Howard, Dr. Xiang told Mr. Howard again that Mr. Howard still had two years to live.

         15. On February 11, 2015, while at home, Ms. Howard noticed that Mr. Howard registered a fever. Ms. Howard called Teresa Howard to take Mr. Howard to the emergency room for treatment. Teresa Howard drove Mr. Howard to the Hospital where he was admitted.

         B. Events After Admission To The Hospital

         16. On Mr. Howard's admission to the Hospital, Stacy Piggee, the admitting nurse, conducted an assessment of Mr. Howard and rated him on the Morse Fall Scale between 65 and 70, indicating a high fall risk. Def.'s Trial Ex. 1A, at 850-51, 869.

         17. When he was admitted to the Hospital, Mr. Howard reported that he had experienced a fall recently, meaning within the last 12 months.

         18. The Morse Fall Scale is a screening instrument that calculates a numerical value from 0-125 to determine a patient's potential for a fall. Def.'s Trial Ex. 5, at 1-2. According to the Hospital's Fall Prevention Program, if a patient has a Morse Fall Scale assessment of 45 points or more, the patient is considered to be at high risk for falls. Id., at 4.

         19. The Hospital's Fall Prevention Program states that Registered Nurses are responsible for: (1) screening veterans for fall risk using the Morse Fall Scale; (2) implementing Falls Protocol on appropriate patients and additional interventions when a patient is at risk for falls; (3) documenting reassessment of fall risk; (4) implementing post-fall care/interventions after a fall occurs; and (5) documenting post-fall events, injury assessment, and care in the patient's clinical record and incident report. Def.'s Trial Ex. 1A, at 1-2.

         20. According to the Hospital's Fall Prevention Program, “Falls Protocol” are interventions to alert staff and visitors that a patient has an increased potential for falls. Def.'s Trial Ex. 5, at 4. If a patient qualifies based on the assessment, a designated fall prevention triangle is placed on the patient's identification armband, and a Falls Care Plan is initiated. Id., at 4.

         21. The Falls Care Plan should be in the medical record of the patient.

         22. The Hospital's Universal Fall Precautions - Inpatient for admitted patients includes, if applicable: (1) nurse call light is secured to the bed and in easy reach of patient; (2) bed is in low position; (3) brakes are locked on beds, bedside commodes, and wheelchairs; (4) hourly rounds/toilet or offer urinal frequently as needed; (5) call lights are answered promptly; (6) keep ambulatory devices (i.e., straight cane, quad cane, walker) within reach of patient, when applicable; (7) patient must wear non-slip foot wear when ambulating; (8) provide good lighting/use night-lights; (9) orient patient/family to surroundings and provide safety teaching; and (10) all personnel are responsible for eliminating hazard spills, objects obstructing the walkway, unstable furniture, etc. Def's Trial Ex. 5, Attachment D.

         23. On the evening of February 13, 2015, for the first time, Teresa Howard observed Mr. Howard comment about a picture of water moving on the wall and slur his speech. When Teresa Howard informed the nurses and doctors about Mr. Howard's comments and slurred speech, they advised Teresa Howard that the antibiotic Mr. Howard was taking can have such side effects on a patient.

         24. Teresa Howard observed that Mr. Howard's comments about water moving and his slurred speech stopped after a time, until Mr. Howard was given another dosage of antibiotic. Teresa Howard testified that she observed Mr. Howard make comments about water moving and slur his speech several times while he was at the Hospital.

         25. On the morning of February 14, 2018, Mr. Howard expressed to Teresa Howard that he needed to use the restroom. Teresa Howard assisted Mr. Howard to the bathroom and to the bathroom sink. While Mr. Howard was at the bathroom sink, with Teresa Howard holding onto his hospital gown, Teresa Howard turned sideways against the wall and sat down on a tall trashcan in the corner of the bathroom. When Teresa Howard sat on the trashcan, Mr. Howard sat down in her lap. Then, Teresa Howard pushed Mr. Howard toward the bathroom sink, on which he steadied himself, while Teresa Howard stood up from the bathroom trashcan. There is no record evidence that Mr. Howard fell to the floor during this incident.

         26. Teresa Howard testified that she stumbled into the bathroom trash can when she backed up. Mr. Howard did not fall during this incident because he was dizzy or stumbling, according to Teresa Howard.

         27. Teresa Howard testified that, after this incident and after Mr. Howard was returned to his hospital bed, she immediately went to tell two male nurses about the incident.

         28. The nursing report titled “Fall Risk Assessment Note” and Dated: February 14, 2015, at 13:54, states that Mr. Howard fell in the bathroom about 4:00 a.m., and two nurses assisted him back to bed. Def.'s Trial Ex. 1B, at 800. The nursing report also states that Teresa Howard did not tell the doctors on rounds on the morning of February 14, 2015, about the incident and that the fall was not reported to the day shift nurses, who authored the nursing report, by the night shift nurses. Id.

         29. Ms. Howard testified that she went home on Friday, February 13, 2015, and returned to the Hospital on Saturday, February 14, 2015, in the evening. When she returned, Mr. Howard began to talk to her, and she could not understand what he was saying. She believed at that time that Mr. Howard may have had a stroke, and she told the nurses that something was wrong with Mr. Howard.

         30. Teresa Howard testified that, at that time, she tried to explain to Ms. Howard that Mr. Howard's slurred speech likely was a reaction to the medicine, but doctors ordered tests anyway to assess his condition.

         31. On or about February 14, 2015, doctors ordered a computed tomography (“CT”) scan of Mr. Howard's head. Def.'s Trial Ex. 1B, at 798. According to the trial testimony of Thomas Huffman, M.D., an expert witness retained by Ms. Howard, the CT scan indicated that there was nothing broken and that no bleeding into the head had occurred. Dr. Huffman further testified that there was no evidence of intracranial hemorrhage resulting from this fall based on the CT scan. According to the trial testimony of Janet Scott, R.N., another expert witness retained by Ms. Howard, the CT scan did not show an injury or any evidence of a stroke.

         32. The nursing note dated February 15, 2015, at 1:13 a.m., states that Mr. Howard was identified as being “at risk for falls.” Def.'s Trial Ex. 1B, at 791. The nursing note also lists several interventions that were put into place for Mr. Howard: universal fall precautions, armband, gripper socks, reinforce need for assisted/supervised transfers, remain with patient during toileting, and create “safe exit side” for transferring from bed. Id.

         33. According to the patient note dated February 15, 2015, at 8:54 a.m., authored by Rajesh Banderudrappagari, M.D., Mr. Howard was receiving a variety of medications including the antibiotic Cefepime as a 60 minute infusion through an IV every 12 hours and the antibiotic Vancomycin as a 90 minute infusion through an IV every 12 hours. Def.'s Trial Ex. 1B, at 784. Dr. Banderudrappagari also noted that Mr. Howard had episodic slurred speech, as well as gait ataxia, which lead to Mr. Howard's fall on February 14, 2015. Id. Dr. Banderudrappagari noted that the CT of Mr. Howard's brain did not indicate hemorrhaging, and he ordered magnetic resonance imaging (“MRI”) for better evaluation of posterior fossa.[2] Id.

         34. In an addendum to Dr. Banderudrappagari's patient note dated February 15, 2015, at 12:42 p.m., Leslie Billings, R.N., noted that Teresa Howard reported to the nursing staff at 1:00 p.m. on February 14, 2015, that Mr. Howard allegedly fell at 4:00 a.m. Def.'s Trial Ex. 1B, at 785.

         35. On February 15, 2015, at 1:08 p.m., a note states that Mr. Howard just developed slurred speech with mild expressive aphasia. Expressive aphasia means that Mr. Howard was having to search for words or that his words would not come out as he intended to say them.

         36. According to the progress note from February 16, 2015, authored by Pamela Gillman, R.N., at 1:05 a.m., a few hours before Mr. Howard's fall that is the subject of this lawsuit, Mr. Howard's armband had a yellow safety alert tab that indicated he was a fall risk. Def.'s Trial Ex. 1B, at 771. The progress note also states that Mr. Howard's mental status was appropriate and that he was able to comprehend the seriousness of his condition, the need for treatment, and the need to follow instructions. Id. The note further states that Mr. Howard continued to be alert and oriented to himself, his surroundings, and the relative time. Id., at 772. The note states that Mr. Howard was educated on his fall risk and the interventions that were in place, which he completely understood. Id.

         37. According to Nurse Gillman's note from February 16, 2015, the following Falls Care Plan was in place for Mr. Howard: Universal Fall Precautions, Armband, Gripper Socks, reinforce need for assisted/supervised transfers, remain with patient during toileting, created “safe exit side” for transferring from bed. Id.

         38. According to the narrative section of Nurse Gillman's note from February 16, 2015, Mr. Howard moved himself to the side of the bed to use the urinal, denied feeling dizzy, and returned himself to the bed and repositioned himself without difficulty. Id., at 773. The note also states that the nurse informed Mr. Howard and Ms. Howard to call for assistance to get out of bed or use the bedside commode. Id. The note further states that Mr. Howard's bed was low and locked, that the call light was within reach, and that the nurse would continue to monitor. Id.

         39. Ms. Howard testified that, when Mr. Howard needed to use the bathroom, one of the family members typically helped Mr. Howard to the bathroom. Ms. Howard specifically testified that, the early morning of February 16, 2015, she walked with Mr. Howard to the bathroom, and after he sat on the toilet, she walked out of the room to tell a nurse that Mr. Howard was in the bathroom on the toilet.

         40. In the nursing note, Nurse Gillman noted that, at approximately 4:15 a.m., Ms. Howard went to the nurses' desk and told the nurse that Ms. Howard had just put Mr. Howard in the bathroom and that she did not have time to use the call light to alert the nurses for assistance before she did that. Def.'s Trial Ex. 1B, at 773. The nurse who then entered the room with Ms. Howard found Mr. Howard barefoot and sitting on the toilet in the bathroom. Id. The nurse instructed Mr. Howard to pull the call light string when he was finished in the bathroom and that the nurse would be standing right outside of the door. Id. The nurse stayed outside of the door for Mr. Howard's safety until he was ready to return to the bed because of the known claims that Mr. Howard had previously fallen. Id.

         41. Ms. Howard then pulled the call light string, and the nurse entered the bathroom where Ms. Howard was attempting to lift Mr. Howard off the toilet. Id. The nurse asked Ms. Howard to allow the nurses to assist Mr. Howard. Id.

         42. Ms. Howard testified that, as a result of this exchange with the nurse, Ms. Howard asked to speak with the nursing supervisor and made a complaint. Ms. Howard believed the nurse's tone and attitude were rude. According to Ms. Howard, the nursing supervisor said that she would take care of the situation and promised that it would not occur again. Ms. Howard testified that it did not occur again.

         43. With the nurse standing by him, Mr. Howard was able to raise himself off the toilet, stood without assistance, and denied that he felt light headed or dizzy while standing. Def.'s Trial Ex. 1B, at 773. Even Ms. Howard concedes that, during this incident, Mr. Howard got up and walked off on his own to return to his bed. Mr. Howard informed the nurses that he felt dizzy after receiving shots to the stomach and antibiotics. Id. Mr. Howard walked slowly and steadily back to the bed without incident. Id. The nurses placed the bedside commode closer to Mr. Howard's bed for greater convenience. Id. The nurses instructed Mr. Howard and Ms. Howard to call for assistance when he needed to get out of bed to use the bedside commode. Id.

         44. The nursing note dated February 16, 2015, at 5:47 a.m., authored by Nurse Gillman, states that Mr. Howard was still subject to the same fall precautions that were put in place the previous day. Id., at 772.

         C. The Fall On February 16, 2015

         45. According to the trial testimony of Shauna Haynes, R.N., on direct examination, her shift at the Hospital officially began at 7:30 a.m. on February 16, 2015, but she often assumed the role of charge nurse and likely arrived around 7:00 a.m. to receive patient reports from the night nurses. Nurse Haynes has a bachelor's degree in nursing, a master's degree in nursing education, and a national certification from the oncology nursing society. She has worked in nursing for 17 years, and she has worked at the Hospital for 10 years.

         46. Nurse Haynes testified that she remembered talking with the night nurse about Mr. Howard's unwitnessed fall that the family reported and that he was under strict fall precautions. After receiving the reports, Nurse Haynes went through the hand-off process where she would introduce herself to the patients to let them know that she would be taking care of them during the shift.

         47. Nurse Haynes knew Mr. Howard and believed she and Mr. Howard had a good relationship. Nurse Haynes previously had been Mr. Howard's nurse in the Hospital's outpatient chemotherapy infusion room when Mr. Howard received chemotherapy treatment. Nurse Hayne worked as a nurse in the infusion room and also as a nurse for the Hospital's 16-bed inpatient hematology/oncology unit. On February 16, 2015, she was working as a nurse for the Hospital's inpatient hematology/oncology unit.

         48. After the hand-off process, Nurse Haynes took Mr. Howard's vitals and administered medications. At 8:04 a.m., Nurse Haynes administered several medications to Mr. Howard. Def.'s Trial Ex. 1D, at 33. At this time, Nurse Haynes gave to Mr. Howard an intravenous infusion (“IV”) of Cefepime, an antibiotic, through a drip that was set to run for 60 minutes. Id. Mr. Howard was also prescribed Filgrastim, a subcutaneous injection used to stimulate white blood cell growth, but the Filgrastim was not in the refrigerator where it was stored. Id., at 31. Nurse Haynes entered a command in the computer to alert the pharmacy to bring up the Filgrastim.

         49. Mr. Howard complained that he felt dizzy after taking the antibiotics and injections-Mr. Howard was only prescribed one injection, Filgrastim, and two IV medications, Cefepime and Vancomycin, with Cefepime being the only IV medication administered on the morning of February 16, 2015, according to the Hospital records. Id., at 33.

         50. According to the Hospital records, Mr. Howard was prescribed an IV of both Cefepime and Vancomycin to continue on February 16, 2015. Def.'s Trial Ex. 1B, at 769. According to the Hospital records, Mr. Howard received both the Cefepime and Vancomycin at the same time on February 14, 2015, at 8:12 p.m.; February 15, 2015, at 8:48 a.m.; and February 15, 2015, at 8:04 p.m. Def.'s Trial Ex. 1D, at 24, 27-29. On February 16, 2015, at 8:05 a.m., Nurse Haynes administered only the Cefepime to Mr. Howard. Id., at 33. At the same time, Nurse Haynes placed an order with the pharmacy for the Vancomycin for Mr. Howard. Def.'s Trial Ex. 1C, at 23. The parties agree that Vancomycin was not administered to Mr. Howard on February 16, 2015, prior to his fall. After Mr. Howard fell on February 16, 2015, Dr. Banderudrappagari canceled the prescription for Vancomycin for Mr. Howard. Id., at 24.

         51. The patient note dated February 16, 2015, at 8:55 a.m., authored by Dr. Banderudrappagari, states that Mr. Howard was prescribed the same medications as Dr. Banderudrappagari's note from February 15, 2015. Def.'s Trial Ex. 1B, at 769. Mr. Howard was not prescribed any other medications that were administered by an IV on February 15 or 16, 2015. Id., at 784. Dr. Banderudrappagari again notes that Mr. Howard has episodic slurred speech and gait ataxia leading to falls. Id. However, on the morning of February 16, 2015, Mr. Howard was conscious and oriented times three; further, Mr. Howard's speech was normal. Dr. Banderudrappagari notes that an MRI of Mr. Howard's brain showed no signs of a stroke or other focal lesions to explain his symptoms. Id.

         52. According to the trial testimony of Ms. Howard on direct examination, Dr. Banderudrappagari came into the hospital room to examine Mr. Howard around 8:55 a.m. on February 16, 2015. According to Ms. Howard, Mr. Howard sat up in his bed while Dr. Banderudrappagari listened to his heart and lungs, but Mr. Howard did not get out of the bed.

         53. The Hospital code sheet indicates that chest compressions were begun on Mr. Howard at 9:03 a.m. Therefore, more likely than not, Mr. Howard's February 16, 2015, fall occurred sometime between the 8:55 and 9:03 range.

         54. Three individuals witnessed Mr. Howard's fall on February 16, 2015: Ms. Howard, Nurse Haynes, and Melissa Kaplon, R.N. The Court heard live testimony from Ms. Howard and Nurse Haynes and was provided with prior deposition testimony from Nurse Kaplon.

         1. Ms. Howard's Recollection

         55. According to Ms. Howard, after Dr. Banderudrappagari examined Mr. Howard, Nurse Haynes entered the room with a bottle of IV antibiotics in her hand. Ms. Howard testified that Mr. Howard asked Nurse Haynes to let him use the bathroom before she hooked up the IV. Nurse Haynes then sat Mr. Howard up on the bed, with his feet off the side of the bed.

         56. After Mr. Howard sat up, Ms. Howard testified that he laid down on the bed on his right side, with his arms next to his body. Ms. Howard testified that she told Nurse Haynes that Mr. Howard was having another weak spell.

         57. According to Ms. Howard, Nurse Haynes then sat Mr. Howard back up on the bed. Ms. Howard testified that Nurse Haynes asked Mr. Howard what he saw when he looked at her and that Mr. Howard responded that he just saw the ocean going by and made a motion with his hand.

         58. According to the trial testimony of Ms. Howard on direct examination, Nurse Haynes then asked Nurse Kaplon to help her put Mr. Howard on the bedside commode. Ms. Howard testified that, at this point, Nurse Haynes laid on the bed the IV bag that she brought into the room. Ms. Howard recalls that both nurses sat Mr. Howard on the bedside commode, which was located at the foot of the hospital bed with the opening of the commode facing the front of the bed.

         59. Ms. Howard testified that, once Mr. Howard was sitting on the commode, Ms. Howard was positioned at the foot of the bed, Nurse Kaplon was at Mr. Howard's side, and Nurse Haynes was standing in front of Mr. Howard. Ms. Howard testified that Nurse Haynes turned about halfway around in front of Mr. Howard and reached over to pick up the IV bag to hook it up to the IV tubing located at the front of the hospital bed.

         60. While Nurse Haynes was hooking up the IV bag, after just a little bit, Mr. Howard folded over, fell off the commode, and hit the floor.

         61. Ms. Howard recalls Mr. Howard hollering loudly when he fell, “Oh!” 62. According to Ms. Howard, Nurse Haynes dropped the IV bag, reached over to where Mr. Howard fell, and grabbed Mr. Howard's shoulder to turn him over. Ms. Howard recalled that Mr. Howard was laying face down, more on his right shoulder than anything else, and Ms. Haynes got him by his left shoulder and pulled him back over onto his back.

         63. Ms. Howard testified that Ms. Howard ran over to where Mr. Howard fell and jerked the bedside commode out of the way so that she could reach Mr. Howard. Ms. Howard then claims that she straddled Mr. Howard and asked him if he could talk to her. Mr. Howard mouthed the word “no” but did not audibly respond.

         64. After this, based on Ms. Howard's recollection, Mr. Howard's eyes rolled into the back of his head, and Ms. Howard told the nurses to call the code team. Nurse Kaplon left to call the code team, while Nurse Haynes grabbed Mr. Howard by the feet, jerked him away from the bed, and began cardio-pulmonary resuscitation (“CPR”).

         65. According to Ms. Howard, at this point, Ms. Howard backed up into the corner of the room because she could not reach the door.

         66. The code team came into the room, and a male nurse took over CPR for Nurse Haynes. Ms. Howard testified that she did not want to be chased from the room, so she stood back in the corner while the code team was in the room.

         67. The code team performed CPR on Mr. Howard, shocked him with a defibrillator, and got a heartbeat, but Mr. Howard was not breathing.

         68. The code team lifted Mr. Howard off the ground and put him back onto his hospital bed. According to Ms. Howard, the code team just lifted Mr. Howard by his arms and legs; they did not cradle his head.

         69. A member of the code team was attempting to intubate Mr. Howard, using the bag to help Mr. Howard breathe.

         70. Ms. Howard concedes that there was blood everywhere in the room because Mr. Howard cut his head when he fell.

         2. Nurse Haynes' Recollection

         71. According to Nurse Haynes, at approximately 9:00 a.m. on February 16, 2015, Ms. Howard came to Nurse Haynes at the nurse's desk and said that Mr. Howard needed to use the restroom. Nurse Haynes asked Nurse Kaplon to assist her with Mr. Howard.

         72. When Nurse Haynes started her shift that day, the only order that was in place with respect to fall precautions was the use of the bedside commode.

         73. Once in the room, Nurse Haynes moved the bedside commode from the bathroom, where it was stored, to the side of Mr. Howard's hospital bed. Nurse Haynes asked Mr. Howard to sit up so that he could get out of bed. Mr. Howard sat on the side of the bed for a few minutes. Nurse Haynes asked Mr. Howard if he could stand, and he said that he could stand.

         74. Nurse Haynes testified that Mr. Howard then stood up, pivoted, and sat in the bedside commode. While Mr. Howard was sitting down, Nurse Haynes was right beside him and did not use any physical exertion to lift Mr. Howard. Nurse Haynes also asked Mr. Howard if he felt any dizziness, and he said that he did not. According to Nurse Haynes, Mr. Howard did not look like he was dizzy and did not say anything unusual before or during his transfer to the bedside commode. Nurse Haynes testified that Mr. Howard did not exhibit any weakness or unsteadiness and that his speech was clear, appropriate, and coherent.

         75. While Mr. Howard was on the commode, Nurse Haynes was standing beside him and in front of the opening of the commode. Nurse Haynes testified that she was no more than an arm's length away from Mr. Howard during this time, and there was not enough space in the room to be further than an arm's length away from where the bedside commode was located.

         76. Nurse Haynes was talking with Mr. Howard while he was using the bedside commode.

         77. Nurse Haynes recalls that Mr. Howard stopped talking and went forward, fell to the ground, and hit his head.

         78. Nurse Haynes testified that she tried to catch Mr. Howard but could not stop him before he hit the floor.

         79. Nurse Haynes recalls that Mr. Howard moved forward very fast with seizure-like activity.

         80. Nurse Haynes recalls that, after Mr. Howard hit his head on the floor, he began to have seizure like activity, such as jerking. Nurse Haynes steadied his head to prevent him from hitting anything in the tight space. Mr. Howard exhibited jerking motions for between 30 and 90 seconds, based on what Nurse Haynes recalls. Once Mr. Howard stopped jerking, Nurse Haynes heard him make a gasping sound, checked his pulse again and found nothing, and called for the code team. Next, according to Nurse Haynes, she and Nurse Kaplon rolled Mr. Howard over and began to administer CPR.

         81. Nurse Haynes created three written records of the event close in time to the event on February 16, 2015. Nurse Haynes recorded a transfer note at 9:53 a.m. on February 16, 2015, describing the event. In another note written by Nurse Haynes on February 16, 2015, at 10:13 a.m., she describes the event. There also was a written incident report created February 16, 2015, which describes the event. In each of those written descriptions, Nurse Haynes describes Mr. Howard as slumping forward or leaning forwarding and falling to the ground from the bedside commode.

         82. According to Nurse Haynes, when the code team arrived, the code team took over CPR compressions from Nurse Haynes and Nurse Kapoan.

         83. Nurse Haynes then asked Ms. Howard to walk with her, and she sat with Ms. Howard in the break room while the code team resuscitated Mr. Howard. After the code team left the room with Mr. Howard, Nurse Haynes walked Ms. Howard to the intensive care unit (“ICU”).

         3. Nurse Kaplon's Prior Testimony

         84. Nurse Kaplon did not testify live before the Court at trial. Instead, the Court has reviewed her prior deposition testimony. Def.'s Trial Ex. 10.

         85. According to Nurse Kaplon, she was at the nurse's station when Nurse Haynes asked for her assistance with Mr. Howard as he used the bedside commode. Id., at 20. Nurse Kaplon did not remember if Ms. Howard came to the nurse's station and asked for assistance or if Nurse Haynes came to Nurse Kaplon separately and asked for assistance. Id., 19-20. When Nurse Kaplon walked into the room, Mr. Howard was laying on the bed, Ms. Howard was seated in a chair across the room from the doorway, and the bedside commode was already in the room. Id., at 29, 31.

         86. Nurse Kaplon recalled that both nurses assisted Mr. Howard sit up on the side of the bed where they let him sit for a few minutes. Id., at 29. Nurse Kaplon stated that, while Mr. Howard was sitting on the bed, he did not seem lightheaded or confused, he did not slur his speech, and he was totally lucid. Id., at 29-30. Nurse Kaplon also stated that she always asks a patient if he or she is ready to stand up before having the patient stand and that Mr. Howard was asked if he was ready to stand. Id., at 32.

         87. Nurse Kaplon explained when asked that, if the patient is able to transfer and sit on a bedside commode, there is no reason why she needs to have her hands on the patient. Id., at 55.

         88. According to Nurse Kaplon, Mr. Howard was carrying on a perfectly fine conversation with the nurses as he sat on the bed and transferred to the bedside commode. Id., at 33. Nurse Kaplon recalled that the bedside commode was located on the floor in proximity to the middle of the bed, facing the head of the bed, with only an inch between the commode and bed. Id., 38-39. Mr. Howard stood up from the bed, pivoted, and sat back down. Id., at 33. The nurses provided minimal assistance to Mr. Howard during the transfer, meaning according to Nurse Kaplon that they had a hand on Mr. Howard just enough to steady him. Id., at 33-34, 54. Once Mr. Howard was seated and secured on the bedside commode, Nurse Kaplon took her hands off Mr. Howard. Id., at 34. The bedside commode has handrails that a patient can use for support. Id.

         89. While Mr. Howard was on the commode, Nurse Kaplon was positioned behind him, and Nurse Haynes was standing in front of Mr. Howard, while giving him enough space for privacy. Id., at 34-35. While Mr. Howard was on the commode, Nurse Kaplon and Nurse Haynes carried on a conversation with him. Id., at 35. Nurse Kaplon does not recall Nurse Haynes hanging anything on the IV pole. Id.

         90. According to Nurse Kaplon, out of nowhere, Mr. Howard folded and collapsed on the floor head first. Id., at 36. Nurse Kaplon stated that, based on her recollection, Nurse Haynes was anywhere from two to four feet away from Mr. Howard when he fell forward. Id., at 36-37. After Mr. Howard fell, Nurse Kaplon pulled the commode out of the area to reach Mr. Howard. Id., at 40. Nurse Kaplon and Nurse Haynes immediately turned Mr. Howard over and assessed him. Id., at 41. Mr. Howard tried to talk, but his eyes were fixed, and he lost a pulse. Id., at 40. The nurses maneuvered Mr. Howard into the doorway where there was more room and started to administer CPR. Id., at 41. Nurse Kaplon left the room when the code team arrived and went back to her patients. Id., at 42.

         91. After Mr. Howard was assisted on to the bedside commode and while he was sitting on the commode, neither Nurse Haynes nor Nurse Kaplon had a hand touching Mr. Howard.

         D. After The February 16, 2015, Fall

         92. Soon after Mr. Howard's fall, the code team intubated Mr. Howard. The code team then took Mr. Howard to the ICU where a CT scan was done of his head at 11:11 a.m.

         93. Ms. Howard did not recall a CT scan being done that day.

         94. After her shift, Nurse Haynes went to the ICU and spoke with Ms. Howard, expressing how sorry she was this had happened.

         95. On February 17, 2015, at 12:44 p.m., Mr. Howard was extubated. Later that day, at 3:14 p.m., Mr. Howard received an MRI based on acute onset quadriplegia. Def.'s Trial Ex. 2A, at 260.

         96. Ms. Howard testified that, the night of February 17, 2015, Mr. Howard continued to cry out in pain.

         97. Ms. Howard testified that, on the night of February 18, 2015, a halo collar was placed on Mr. Howard. Ms. Howard concedes that her days and nights ran together during this time.

         98. On February 18, 2015, Mr. Howard was transferred from the Hospital to the University of Arkansas for Medical Sciences Hospital (“UAMS”) for further treatment because it was determined that Mr. Howard had an odontoid fracture with cord compression requiring neuro-surgery. Def.'s Trial Ex. 2A, at 4.

         99. The progress note on February 19, 2015, written by Heath Pinckard-Dover, M.D., states that Mr. Howard had type II odontoid facture and central cord syndrome. Id., at 23. Dr. Pinkard-Dover's progress note further states that she talked with Noojan Kazemi, M.D., about Mr. Howard. Id.

         100. On February 20, 2015, Mr. Howard underwent a successful surgery at UAMS performed by Dr. Kazemi. Id., at 6-7.

         101. According to the progress note written by Devin L. Dickson, M.D., from February 25, 2015, he spoke with Dr. Xiang who advised that Mr. Howard had a poor prognosis and had failed multiple treatments for his multiple myeloma prior to the cervical fracture that occurred on February 16, 2015. Id., at 59. Dr. Dickson further states in the progress ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.