United States District Court, E.D. Arkansas, Western Division
RACHEL HOWARD, as Executrix of the Estate of C.R. Howard, deceased PLAINTIFF
FINDINGS OF FACT AND CONCLUSIONS OF LAW
KRISTINE G. BAKER, UNITED STATES DISTRICT JUDGE
matter came before the Court for a bench trial. 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.
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.
prior Order, this Court addressed the scope of Ms.
Howard's permissible claims against “staff
employees/nurses” of the Hospital under the FTCA (Dkt.
Mr. Howard's History
Howard was born on January 22, 1940. Def.'s Trial Ex. 1A.
Howard married Ms. Howard January 9, 2009; it was not the
first marriage for either of them.
Howard is step mother to Teresa Howard Brooks (“Teresa
Howard”) and Russell Howard, Sr., Mr. Howard's
Prior to retirement, Ms. Howard worked as a Registered Nurse.
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
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.
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.
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.
May 2014, Mr. Howard began receiving treatment for multiple
myeloma from Zhifu Xiang, M.D., a hematologist with the
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
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.
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.
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
Events After Admission To The Hospital
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
When he was admitted to the Hospital, Mr. Howard reported
that he had experienced a fall recently, meaning within the
last 12 months.
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.
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.
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
Falls Care Plan should be in the medical record of 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.
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.
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.
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.
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 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.
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.
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
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.
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.
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.
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. Id.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
The Fall On February 16, 2015
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
Ms. Howard's Recollection
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.
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.
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.
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.
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.
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.
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.
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
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”).
According to Ms. Howard, at this point, Ms. Howard backed up
into the corner of the room because she could not reach 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.
code team performed CPR on Mr. Howard, shocked him with a
defibrillator, and got a heartbeat, but Mr. Howard was not
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.
member of the code team was attempting to intubate Mr.
Howard, using the bag to help Mr. Howard breathe.
Howard concedes that there was blood everywhere in the room
because Mr. Howard cut his head when he fell.
Nurse Haynes' Recollection
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
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.
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.
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,
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
Nurse Haynes was talking with Mr. Howard while he was using
the bedside commode.
Nurse Haynes recalls that Mr. Howard stopped talking and went
forward, fell to the ground, and hit his head.
Nurse Haynes testified that she tried to catch Mr. Howard but
could not stop him before he hit the floor.
Nurse Haynes recalls that Mr. Howard moved forward very fast
with seizure-like activity.
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.
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.
According to Nurse Haynes, when the code team arrived, the
code team took over CPR compressions from Nurse Haynes and
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”).
Nurse Kaplon's Prior Testimony
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.
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.
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
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.
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.
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.
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
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.
After The February 16, 2015, Fall
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.
Howard did not recall a CT scan being done that day.
After her shift, Nurse Haynes went to the ICU and spoke with
Ms. Howard, expressing how sorry she was this had happened.
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,
Howard testified that, the night of February 17, 2015, Mr.
Howard continued to cry out in pain.
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.
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.
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.
February 20, 2015, Mr. Howard underwent a successful surgery
at UAMS performed by Dr. Kazemi. Id., at 6-7.
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