Patti Morgan, Individually and as Natural Mother and Heir-at-Law of Robert Douglas Cook, and the Estate of Robert Douglas Cook, By and Through Patti Morgan as Special Administrator of the Estate, Appellants,
Healing Hands Home Health Care, LLC, Appellee.
plaintiff may use a statute to establish a duty of care in a
simple negligence case even if that statute does not provide
a private right of action.
2. In a
simple negligence suit, a plaintiff may use a statute to
establish a duty of care and violation of a statutory
requirement to establish breach of that duty so long as the
injured party was a member of the class the statute sought to
protect and the injury was of the character the Legislature
sought to protect the public against.
person need not have been previously declared incompetent,
appointed a guardian, or appointed a conservator to qualify
as an "adult" within the meaning of K.S.A.
39-1430(a) and K.S.A. 39-1431(a).
Under the facts of this case, it was error for the trial
court to grant partial summary judgment in favor of defendant
home healthcare company in ruling that K.S.A. 39-1431(a) was
inapplicable as a matter of law when establishing a duty in a
negligence action for the death of a person diagnosed with
schizophrenia and diabetes who was receiving twice daily
in-home nursing visits from a home healthcare company.
from Sedgwick District Court; Warren M. Wilbert, judge.
M. Warner, Jr., of Warner Law Offices, P.A., of Wichita, for
Stephen H. Netherton and Don D. Gribble II, of Hite, Fanning
& Honeyman L.L.P., of Wichita, for appellee.
Buser, P.J., Green and Malone, JJ.
Cook had diabetes and "chronic, severe" paranoid
schizophrenia, and received twice daily in-home nursing
visits from Healing Hands Home Healthcare ("Healing
Hands") nurses. He died of hyperthermia in June 2013.
After Cook died, his mother Patti Morgan sued Healing Hands
for negligence. The trial court granted Healing Hands'
partial summary judgment motion, ruling that Kansas'
mandatory reporter statute, K.S.A. 39-1431(a), could not
serve as a basis for a duty Morgan alleged Healing Hands owed
Cook and breached. After a trial, the jury found Healing
Hands bore no fault for Cook's death. Morgan now appeals.
She argues that the trial court erred by granting Healing
Hands' partial summary judgment motion and erroneously
failed to give one of her requested jury instructions. For
the reasons stated later, we reverse the trial court's
partial summary judgment ruling, but we find no error in the
trial court's jury instructions ruling.
schizophrenia made him "forgetful" and gave him
"daily auditory hallucinations and delusions." Cook
was prescribed multiple medications for his condition,
including clozapine for his schizophrenia. Clozapine's
side effects include increased heart rate and a decreased
capacity to tolerate heat. Cook's primary physician
ordered that Cook receive home healthcare; Healing Hands was
Cook's home healthcare provider. Nurses from Healing
Hands were supposed to visit Cook twice every day.
psychiatrist signed off on a care plan for Cook every two
months. The care plans were to be facilitated by Healing
Hands. Cook's final care plan was issued on May 27, 2013.
The care plan noted that Cook had a potential for "self
harm." It stated that Cook "is alert and oriented
but forgetful cont[inue]s to be delusional and hallucinate
has poor personal hygiene." It listed that for the last
60 days, Cook's vitals were as follows: systolic blood
pressure of 100-140; diastolic blood pressure of 62-84; pulse
rate of 70-80; respirations of 18-22; and blood sugar ranges
between 80 and 220. The pulse rate listed in this care plan
did not match Cook's actual pulse readings for the past
care plan ordered that Healing Hands do the following:
- Evaluate Cook's cardiopulmonary status daily.
- Evaluate Cook's eating, hydration, and restroom habits
- Evaluate for infection as needed.
- Set up Cook's medications weekly and remind him to take
- Evaluate Cook's blood sugar on Monday, Wednesday, and
- Draw labs as needed.
- Evaluate and teach Cook about diabetic diet habits and
on May 20, 2013, Cook's nurses noted that the temperature
in Cook's apartment was very warm. The nurses noted the
heat, Cook's hygiene, and Cook's continued failure to
turn on his air conditioning as follows:
- May 20, 2013: "apt. very warm & seems as if client
may not use deodorant. Has a potent smell to him."
- May 30, 2013: "Instructed client on personal
- June 1, 2013: "house is very warm."
- June 4, 2013: "Pt [patient] very unkempt."
- June 5, 2013 morning: "Instructed client on personal
hygiene. . . . Warm in his apt. States he is ok, will turn on
- June 5, 2013 evening: "very warm in apt. States he is
- June 7, 2013: "Much better hygiene this AM. Not so
warm in his apt."
- June 9, 2013: "unkempt odor of pt. house hombly [sic]
- June 11, 2013: "very warm in his apt. States he is
- June 12, 2013: "Strong B.O. Very warm in apt.
[Instructed to [increase] fluid intake."
- June 15, 2013: "Apt very warm P.T. [patient] states
- June 17, 2013: "Talked to client about his apt being
so warm. States it's ok for himself."
- June 18, 2013: "Pt very unkept. Strong B.O."
- June 19, 2013: "Very warm in his apartment. States he
is fine [with] it."
- June 20, 2013: "Has very poor hygiene, strong body
odor. Keeps house very warm. States he is ok, going to take a
- June 21, 2013: "Very warm in apt. States he will use
AC later. Informed him about Red Cross giving out fans."
- June 22, 2013: "Pt [patient] appears anxious and house
- June 23, 2013: "Very warm in his apt. No AC on.
Sweating heavily. Poor hygiene. . . . Instructed client about
it being so hot. States it's ok."
- June 24, 2013 morning: "Very poor hygiene. Sleeps in
his clothes. Client states he is ok with his apt being
- June 24, 2013 evening: "Pt [patient] very unkept.
- June 25, 2013 morning: "Instructed client is not going
to use A/C. Sweating heavy. Needs to replenish his fluids.
Drink some Gatorade. Very bad body odor. Sleeps in his
- June 25, 2013 evening: "[Instructed] to [increase]
fluid intake to prevent dehydration. Denies being overly
- June 26, 2013 morning: "His apt is very warm inside.
He smells really foul. Instructed about heat [and] his
sweating. Client states he is comfortable in his apt."
- June 26, 2013 evening: "Pt [patient] very unkept.
- June 27, 2013 morning: "Very warm in his apt. Not
using his A/C. States he's ok. . . . Instructed client
it's too warm in here, use you're A/C. States he will
- June 27, 2013 evening: "Apt very warm. Pt [patient]
states he is comfortable. Discussed drinking Gatorade or
while Cook's most recent care plan listed his typical
pulse range in the previous 60 days as 70-80 beats per
minute, the nurses' notes show that during June 2013, his
pulse was significantly higher. The nurses recorded his pulse
- May 30, 2013. Morning: 119; Evening: 100.
- May 31, 2013. Morning: no visit; Evening: 120.
- June 1, 2013. Morning: 119; Evening: 118.
- June 2, 2013. Morning: 110; ...