Cauffiel v. Progressive Eldercare Services-Saline, Inc.

2021 Ark. App. 314

635 S.W.3d 1

Terry CAUFFIEL, as Administrator of the Estate of Carolyn Sue Cauffiel, and on Behalf of the Wrongful Death Beneficiaries of Carolyn Sue Cauffiel, Appellant

v.PROGRESSIVE ELDERCARE SERVICES-SALINE, INC., d/b/a Heartland Rehabilitation and Care Center ; Southern Administrative Services, LLC; and Careplus Staffing Services, LLC, Appellees

No. CV-20-404

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered September 1, 2021

Reddick Moss, PLLC, by: Matthew D. Swindle, Heather G. Zachary, Little Rock, and Robert W. Francis, for appellant.

Kutak Rock LLP, Rogers, by: Mark W. Dossett and Samantha Blassingame, for appellees.

LARRY D. VAUGHT, Judge

Terry Cauffiel, acting as administrator of the estate of his mother, Carolyn Sue Cauffiel, appeals the Saline County Circuit Court's order granting Progressive Eldercare Services-Saline, Inc., d/b/a Heartland Rehabilitation and Care Center ("Heartland") a directed verdict on Cauffiel's resident's-rights claim under the Arkansas Protection of Long-Term Care Facility Residents Act ("Resident's Rights Act"), 1999 Ark. Acts 1181, as amended (currently codified at Ark. Code Ann. §§ 20-10-1201 to -1209 (Repl. 2018 & Supp. 2019). We reverse and remand.

Carolyn Cauffiel was a resident of Heartland from February 29 to July 22, 2012. On the morning of July 22, Ms. Cauffiel was rushed to the hospital in extreme respiratory distress and passed away a few days later. Terry Cauffiel was named administrator of her estate and filed suit against Heartland alleging negligence, medical malpractice, and violations of Ms. Cauffiel's statutory rights as a resident of a long-term-care facility. He also included several other claims that were dismissed prior to trial and are not a part of this appeal.

Mr. Cauffiel tried these claims to a jury in May 2018. He presented expert testimony from a nurse and a physician that breaches of the professional standard of care caused Ms. Cauffiel to suffer medical injuries and death. Mr. Cauffiel also testified and presented the testimony of other lay witnesses describing the terrible conditions in the nursing home and illustrated how Ms. Cauffiel and other residents were routinely ignored, mocked, left to sit in their own filth and waste, and suffered insults to their basic humanity and dignity.

At the close of the plaintiff's case, Heartland requested a directed verdict on the resident's-rights claim, arguing that the legislature eliminated the independent cause of action via a subsequent amendment to the Resident's-Rights Act and that the claim was duplicative of the negligence/medical-malpractice claim. The motion was denied but was renewed after the close of Heartland's case, and after several rounds of arguments on the motion, the circuit court directed a verdict on the resident's-rights claim because it said the jury would not be able to distinguish between damages attributable to medical malpractice and damages attributable to violations of the Resident's Rights Act.

The remaining medical-malpractice claim was submitted to the jury, which found that Heartland had breached the standard of care. The jury awarded $30,812.15 for Ms. Cauffiel's pain and suffering. Mr. Cauffiel now appeals the circuit court's decision to direct a verdict in favor of Heartland on the resident's-rights claim.

A circuit court properly grants a directed verdict when the party bearing the burden of proof fails to introduce sufficient evidence to put the cause of action to the jury. Farm Credit Midsouth PCA v. Bollinger , 2018 Ark. App. 224, at 6, 548 S.W.3d 164, 170–71. "In determining whether a directed verdict should have been granted, we review the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it." Woodall v. Chuck Dory Auto Sales, Inc. , 347 Ark. 260, 264, 61 S.W.3d 835, 838 (2001). "A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict." Id. "[I]f any substantial evidence exists that tends to establish an issue in favor of [the opposing] party, then a jury question is presented, and the directed verdict should be reversed." Rose Care, Inc. v. Ross , 91 Ark. App. 187, 210, 209 S.W.3d 393, 407 (2005) (emphasis in original). Likewise, "[w]here the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented." Id. at 200, 209 S.W.3d at 400. A circuit court may also properly grant a directed verdict when the court resolves a legal issue entitling the moving party to judgment as a matter of law on a particular claim. D.B. Griffin Warehouse, Inc. v. Sanders , 336 Ark. 456, 464, 986 S.W.2d 836, 840 (1999).

The Resident's Rights Act codified certain rights for Arkansans living in nursing homes. Relevant to this appeal, the Resident's Rights Act guarantees individuals living in nursing homes (1) the right to be free from mental and physical abuse; and (2) the right to be treated courteously, fairly, and with the fullest measure of dignity. Ark. Code Ann. § 20-10-1204 (a)(14), (21) (Repl. 2018). At the time Cauffiel's claims accrued in 2012 and when the lawsuit was filed in 2013, the Resident's Rights Act allowed for any resident injured by a deprivation of the rights listed above to "bring a cause of action against any licensee responsible for the deprivation or infringement." Ark. Code Ann. § 20-10-1209(a) (Repl. 2005). In 2013, the Resident's Rights Act was amended by Act 1196 to completely eliminate this claim. In its current form, nursing-home residents may no longer recover for violations of the Resident's Rights Act. Instead, they have only one cause of action "under § 16-114-201 et seq.," the Medical Malpractice Act. Ark. Code Ann. § 20-10-1209(a)(1) (Repl. 2018). The current version makes it clear that a deprivation or infringement of a resident's rights now "does not itself create an additional cause of action." Id. § 20-10-1209(d)(1). Rather than a standalone claim with damages that do not depend on a showing of medical negligence, violations of the Resident's Rights Act are now only considered "evidence of negligence" as part of a medical-malpractice claim. Id. § 20-10-1209(d)(2).

At trial, the circuit court granted a directed verdict on Cauffiel's resident's-rights claim because it ruled that allowing the plaintiffs to proceed on both the negligence claim and the resident's-rights claim would likely confuse the jury and lead to an impermissible double recovery.¹ On appeal, Cauffiel argues that the court erred in granting a directed verdict against his resident's-rights claim because the Arkansas Supreme Court has repeatedly recognized that such a claim is separate and distinct from a negligence or medical-malpractice claim. Heartland counters that (1) even if separate and distinct claims, it would be impermissible to allow for double recovery for the same injury, and (2) the 2013 amendment to the Resident's Rights Act should be applied retroactively to bar Cauffiel's cause of action.

The court ruled that Cauffiel could not present both the resident's-rights claim and the negligence claim to the jury because doing so would confuse the jury and likely lead to a double recovery. On appeal, Cauffiel argues that these two claims have long been recognized as separate and distinct causes of action. Cauffiel relies heavily on Koch v. Northport Health Services of Arkansas, LLC , 361 Ark. 192, 202, 205 S.W.3d 754, 762 (2005). In Koch , the jury decided in favor of the defense on a nursing-home resident's medical-malpractice claim, resident's-rights claim, and wrongful-death claim. The jury was unable to reach a verdict on the plaintiff's ordinary-negligence claim, and the circuit court entered a verdict in favor of the defense on the ordinary-negligence claim. The Arkansas Supreme Court reversed the court's refusal to grant a mistrial on the ordinary-negligence claim, holding that the jury's verdict for the defense on the resident's-rights claim was not dispositive as to the ordinary-negligence claim, because the "[resident's rights] claim is a statutory claim separate from the common-law claim of ordinary negligence, the jury was entitled to reach conflicting results in relation to those claims." Koch , 361 Ark. at 202, 205 S.W.3d at 762. Similarly, in Smith v. Heather Manor Care Center, Inc. , the Arkansas Supreme Court reversed a directed verdict entered against a nursing-home patient's resident's-right claim, explaining:

Although the Arkansas Supreme Court has not expressly considered whether a resident's rights claim is subsumed into a medical-malpractice claim, it has referred to a resident's rights claim as a statutory claim that is separate and distinct from any negligence claim. Koch v. Northport Health Servs. of Ark., LLC , 361 Ark. 192, 202, 205 S.W.3d 754, 762 (2005). We cannot say that the administrators’ resident's rights claim was subsumed into the medical-malpractice claim. Therefore, the circuit court could not properly grant a directed verdict on that basis in favor of Heather Manor. However, a directed verdict in favor of Heather Manor would be proper if the administrators failed to submit sufficient evidence to support their claim.

2012 Ark. App. 584, at 5–6, 424 S.W.3d 368, 373–74.

Heartland argues that, even if they are separate and distinct claims, the court was right to direct a verdict on the resident's-rights claim because sending both claims to the jury would lead to an impermissible double recovery. Heartland's argument is a nuanced one: it contends that when the plaintiff pursues alternative causes of action (which it concedes a plaintiff may do), if the damages alleged under both causes of action are the same (i.e., measuring the same injury or loss), the circuit court should allow only one of the causes of action to proceed to the jury in order to prevent the plaintiff...