Morgan v. Healing Hands Home Health Care, LLC

         SYLLABUS

         1. A 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.

         3. A 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).

         4. 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.

          Appeal from Sedgwick District Court; Warren M. Wilbert, judge.

          Thomas M. Warner, Jr., of Warner Law Offices, P.A., of Wichita, for appellants.

          Stephen H. Netherton and Don D. Gribble II, of Hite, Fanning & Honeyman L.L.P., of Wichita, for appellee.

          Before Buser, P.J., Green and Malone, JJ.

          GREEN, J.

         Robert 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.

         Cook's 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.

         Cook's 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 60 days.

         The care plan ordered that Healing Hands do the following:

- Evaluate Cook's cardiopulmonary status daily.

- Evaluate Cook's eating, hydration, and restroom habits as needed.

- Evaluate for infection as needed.

- Set up Cook's medications weekly and remind him to take them.

- Evaluate Cook's blood sugar on Monday, Wednesday, and Friday.

- Draw labs as needed.

- Evaluate and teach Cook about diabetic diet habits and care.

         Beginning 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 hygiene."

- 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 A/C later."

- June 5, 2013 evening: "very warm in apt. States he is comfortable."

- June 7, 2013: "Much better hygiene this AM. Not so warm in his apt."

- June 9, 2013: "unkempt odor of pt. house hombly [sic] warm."

- June 11, 2013: "very warm in his apt. States he is ok."

- 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 he's comfortable."

- 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 shower."

- 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 was hot."

- 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 warm."

- June 24, 2013 evening: "Pt [patient] very unkept. Strong B.O."

- 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 clothes."

- June 25, 2013 evening: "[Instructed] to [increase] fluid intake to prevent dehydration. Denies being overly warm."

- 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. Strong B.O."

- 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 later."

- June 27, 2013 evening: "Apt very warm. Pt [patient] states he is comfortable. Discussed drinking Gatorade or similar fluids."

         Additionally, 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 as follows:

- 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; ...