Gracy Woods I Nursing Home v. Martha Mahan, as the Representative of the Estate of Mary Rivera

ACCEPTED

03-15-00596-CV

8332526

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/21/2015 4:56:48 PM

JEFFREY D. KYLE

CLERK

NO. 03-15-00596-CV

FILED IN

IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS

AUSTIN, TEXAS AUSTIN, TEXAS

12/21/2015 4:56:48 PM

JEFFREY D. KYLE

Clerk

GRACY WOODS I NURSING HOME

APPELLANT

v.

MARTHA MAHAN, AS THE REPRESENTATIVE

OF THE ESTATE OF MARY RIVERA

APPELLEE

ON INTERLOCUTORY APPEAL FROM

THE 250TH JUDICIAL DISTRICT,' TRAVIS COUNTY, TEXAS

APPELLEE'S BRIEF

Jack Modesett, III

Texas Bar No. 14244337

Walter V. Williatns

Texas Bar No. 21584800

MODESETTWILLIAMS, PLLC

515 Congress Avenue, Suite 1650

Austin, Texas 78701

512-472-6097- Telephone

512-481-0130- Telecopier

j ack@modesettlaw .cotn

ATTORNEYS FOR APPELLEE

ORAL ARGUMENT REQUESTED

IDENTITIES OF PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 38.1(a), Appellee cetiifies that the following is a

complete list of all parties to this litigation and the names and addresses of all

counsel.

Party Appellate Counsel Trial Counsel

Grace Woods I E1nily J. Davenpoti Emily J. Davenport

Nursing Home, Janice Byington Janice Byington

Appellant Reed, Claymon, Meeker & Reed, Claymon, Meeker &

Hargett, PLLC Hargett, PLLC

5608 Parkcrest Dr. Suite 5608 Parkcrest Dr. Suite

200 200

Austin, Texas 78731 Austin, Texas 78731

edavenport@rcmhlaw.com edavenport@rcmhlaw.com

jbyington@rcmhlaw.com jbyington@rcmhlaw.com

Martha Mahan, as Jack Modesett, III Jack Modesett, III

the Representative Walter V. Williams Walter V. Williams

of the Estate of ModesettWilliams, PLLC ModesettWilliams, PLLC

Mary Rivera, 515 Congress Ave., 515 Congress Ave.,

Appellee Suite 1650 Suite 1650

Austin, Texas 78701 Austin, Texas 78701

jack@modesettlaw.com j ack@modesettlaw.com

walter@modwill.com walter@modwill.com

1

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................... i

TABLE OF CONTENTS ................................................................................ ii

TABLE OF AUTHORITIES ......................................................... .iv

ABBREVIATIONS OF RECORD REFERENCES ......................................... vi

APPENDIX ..................................................................................................... vii

STATEMENT OF THE CASE ....................................................................... viii

COURSE OF PROCEEDINGS AND DISPOSITION ................................... viii

STATEMENTREGARDINGORALARGUMENT........................................ 1

STATEMENT OF JURISDICTION ................................................................. 1

ISSUES PRESENTED ...................................................................................... 1

STATEMENT OF FACTS ................................................................................ 2

SUMMARY OF ARGUMENT ......................................................................... 4

ARGUMENT AND AUTHORITIES ................................................................ 5

I. STANDARD OF REVIEW ................................................................. 5

II. DR. LIPSON IS QUALIFIED ............................................................. 5

A. Summary ofDr. Lipson's Qualifications ............................... 6

B. Dr. Lipson is Qualified to Offer Causation Opinion ............. 9

C. Dr. Lipson is Qualified to Offer Opinions on

Standard of Care and Breach ................................................ 18

11

III. THE REPORT IS A GOOD FAITH EFFORT

TO COMPLY WITH CHAPTER 74 ................................................. 21

A. Summary of Dr. Lipson's Report ........................................ 21

B. The Report is Sufficient as to Breach and Causation ......... 28

CONCLUSION AND PRAYER ..................................................................... 32

CERTIFICATE OF SERVICE ....................................................................... 33

CERTIFICATE OF COMPLIANCE .............................................................. 34

111

NO. 03-15-00596-CV

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

GRACY WOODS I NURSING HOME

APPELLANT

v.

MARTHA MAHAN, AS THE REPRESENTATIVE

OF THE ESTATE OF MARY RIVERA

APPELLEE

ON INTERLOCUTORY APPEAL FROM

THE 250TH JUDICIAL DISTRICT, TRAVIS COUNTY, TEXAS

APPELLEE'S BRIEF

Jack Modesett, III

Texas Bar No. 14244337

Walter V. Williatns

Texas Bar No. 21584800

MODESETTWILLIAMS, PLLC

515 Congress Avenue, Suite 1650

Austin, Texas 78701

512-4 72-6097- Telephone

512-481-0130- Telecopier

jack@tnodesettlaw.cotn

ATTORNEYS FOR APPELLEE

ORAL ARGUMENT REQUESTED

whether S.B. had been raped. Timberlawn's arguments are best

summarized in the conclusion and prayer set forth in its brief:

[Levine] did not and/ or could not express an opinion, based

on his education, training or experience, that [S.B.] was

sexually assaulted or raped. [S.B.' s] expert did not nor could

not articulate facts to support any opinion that

[Timberlawn' s] alleged breaches in the standard of care

proximately caused [S.B. 's] alleged sexual assault or rape.

[S.B. 's] expert has not shown himself to be qualified to

render an opinion that [S.B.] was sexually assaulted or

raped or that the alleged breaches in the standard of care

proximately caused [S.B. 's] sexual assault or rape.

Thus, the premise of Timberlawn's arguments is that unless

S.B. can present the report of a qualified expert opining that S.B.

was actually raped, her expert report( s) cannot identify the

alleged causal relationship between Timberlawn' s actions or

omissions and S.B.' s alleged injuries, as required by section

74.351(r)(6). We reject this premise.

In some healthcare liability claims, the ((injury, harm, or

damages claimed" flow from the existence of a medical condition

that itself resulted from the breach of the applicable standard of

care. In such cases, identifying the causal relationship between the

alleged breach of the standard of care and the resulting harm

involves not only an explanation as to how the standard of care

was breached, but also how the breach gave rise to the new,

deleterious medical condition. Similarly, other healthcare liability

claims may allege that a breach of the applicable standard of care

exacerbated a pre-existing medical condition, or hindered or

prevented the effective treatment of such a condition. Identifying

the ((breach/injury" causal relationship in these cases may well

require an expert to opine as to the existence, extent, and

prognosis of the pre-existing medical condition, as well as how the

alleged breach of the standard of care aggravated such a

condition, impeded or prohibited its treatment, and otherwise

affected the patient's prognosis.

However, S.B. 's claim is different. S.B. alleges that, as a result

of Timberlawn's failure to meet the applicable standards of care

11

ABBREVIATIONS AND RECORD REFERENCES

Abbreviations:

Appellee will be referred to as "Appellee", "Mahan" or "Ms. Rivera."

Appellant, Gracy Woods I Nursing Home will be referred to as

"Appellant" or "Gracy Woods."

Record References:

References to the Clerk's Record are in the form of "CR "

References to the Clerk's Supplemental Record are in the form of"Supp. CR_."

References to the Reporter's Record are in the form of"RR_."

References to the Appendix items attached to the Brief are in the form of

"App._."

Vl

APPENDIX

Report of Loren Lipson, M.D. with exhibits 1 .......................................... Appendix 1

1

Appellant's Appendix 5, "Report of Loren Lipson, M.D." does not contain all of Dr. Lipson's

referenced exhibits.

Vll

STATEMENT OF THE CASE

Appellee is satisfied with Appellant's statement of the case. Tex. R. App. P.

38.2(a)(l )(B).

COURSE OF THE PROCEEDINGS AND DISPOSITION

Appellee is satisfied with Appellant's Course of Proceedings. Tex. R. App.

P. 38.2(a)(l)(B).

Vlll

NO. 03-15-00596-CV

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

GRACY WOODS I NURSING HOME

APPELLANT

v.

MARTHA MAHAN, AS THE REPRESENTATIVE

OF THE ESTATE OF MARY RIVERA

APPELLEE

ON INTERLOCUTORY APPEAL FROM

THE 250TH JUDICIAL DISTRICT, TRAVIS COUNTY, TEXAS

APPELLEE'S BRIEF

Jack Modesett, III

Texas Bar No. 14244337

Walter V. Williatns

Texas Bar No. 21584800

MODESETTWILLIAMS, PLLC

515 Congress Avenue, Suite 1650

Austin, Texas 78701

512-4 72-6097- Telephone

512-481-0130- Telecopier

jack@tnodesettlaw.cotn

ATTORNEYS FOR APPELLEE

ORAL ARGUMENT REQUESTED

STATEMENT REGARDING ORAL ARGUMENT

Appellee requests oral argument pursuant to TEX. R. APr. P. 39.1 and

respectfully submits that oral argument would aid the Court in determining the

legal and factual issues presented in this appeal.

STATEMENT OF JURISDICTION

Appellee is satisfied with Appellant's Statement of Jurisdiction. Tex. R.

App. P. 38.2(a)(1)(B).

ISSUES PRESENTED

Appellee is satisfied with Appellant's statement of the Issues Presented.

Tex. R. App. P. 38.2(a)(1)(B).

1

STATEMENT OF FACTS

On November 8, 2013, 78 year-old demented Mary Rivera was sexually

assaulted in her room, while a resident at Appellant's nursing home facility. (CR

17.) The rape occurred after regularly scheduled events at the nursing home during

which alcohol was served. (CR 17.) Mrs. Rivera's daughter, Martha Mahan, had

previously complained to the facility that younger male residents had behaved

inappropriately towards Mrs. Rivera. Appellant took no action. (CR 17.)

Early in the morning of November 9, 2013, Mahan went to visit her mother

in the nursing home. Mrs. Rivera was distressed. Mahan noted broken glass on

the floor of her room. When she took her mother to the bathroom, Mrs. Rivera

attempted to urinate standing up, which was unusual. Mahan also found a wad of

bloody rags in Mrs. Rivera's trashcan. (CR 17-18.) Mahan showed this evidence

to nursing home employees, who destroyed it. (CR 17-18.) Ultimately, Mrs.

Rivera was taken to St. David's Medical Center where a Sexual Assault Nurse

Examiner (SANE) performed a post-rape examination. (CR 18, 92, 100.) This

SANE nurse found bruising to posterior fourchette and periurethral areas of Mrs.

Rivera's vulva as well as bruising on her posterior vaginal wall. (CR 18, 94, 100.)

According to the SANE nurse, this definitively indicated penetration of the female

sexual organ. (CR 18, 94, 100.)

2

j. Unive~·sity of Southe111 California S¢l:Cool of Medicine~ Los

Angeles? California; Chie~ Dlvlsion of Gerlatdo Medicine· jn the

DepartJ;ne11t ofMedlcinej January 19&4- 2005.

k. University of Southern Califotnhh Los Angeles~ Califot:nia~

Associate Professot of' Gerontology, L~onard Davis School of

Gerontology~ Ethel Percy An.drus Gerontology Center~ Januaty

1984 ,_ Septetnber 2006.

1. University of Southern CalifomiaJ Los Angeles,· California;

Assooiate Professor cf Clinical Pharmacy, U.S.C7 Sohool of

Pharmacy~ October 1989 .... September 2006~

m. Los Angeles County/University of Southe:n1 California Medical

Center~ Los Angeles, California; Staff Physloia11 in Medioinej

(Oeriatdo Medicine), 1984..2004.

u, Sabbatioal Leave> Harvard Medical School~ Boston,

Massachusetts~ Dlvisio11 of Agingt John A. Hartfol'd Seniol'

Scholar in Gerlatdc Medicine-~ 19 84- 1985.

o. B:dghant & Women~s Hospital, Boston,. Massaohusetts; Clinioal

Fellow in Medioine (Oer!atrio Medicine)~ 1984 ..1985.

p 4 :Beth Israel I-iospital~ Boston~ Massachusetts; Clinical Fel~ow in

Medicine (Ge:dai1'lc Ivfedioine), 1984 .... 1935

q. University of Southern California, Los Angeles~ California; Senior

Research Associate; Getontology Research Institute; Ethel Percy

Andrus Gerontology Cente1~ 1985 .-.. 1989.

r. University of Southern. California., Los Angeles~ California; Fellow

Institute of Advance Study, Ethel Percy Andtus Gerontology

Center, 19B5 . . . 1987.

$. University of Southern California University Hospital, Los

A11geles~ California;

Chief of Geriatric Medicine~ 1991.. 2005

University of Southern California . . . School of DentistJ:y -

Associate Professor of Medical Dentistry and Public HealthJ 1994

i

-September 2006.

I

u. Unlversity of Sottthem California~ School of Independent Health

_Professionals - Associate Professor o:f Oocupa.!ional Science and

Oooupational Therapy~ 1998~ S~ptember 2006.

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APPENDIX 1

SUMMARY OF THE ARGUMENT

A smattering of citations to black letter law belie what Appellant's Brief

really appears to be: a cut-and-paste boilerplate appeal of an adverse ruling on a

Section 74.351 motion to dismiss. Appellant challenges the qualifications of an

expert eminently qualified on nursing home healthcare, and argues that a detailed

and comprehensive export report somehow fails to meet the "good faith" standard.

Appellant largely ignores both the level of detail of Dr. Lipson's report, as

well as his unassailable CV. Dr. Lipson is the expert that the U.S. Department of

Justice, U.S. Department of Health and Human Services, the Office of the

Inspector General, and the states of Alaska, California, and New Mexico have

turned to regarding geriatric medicine, elder abuse, and long term care of the

elderly. He is quite possibly the most qualified expert in the country on these

issues. His report details his background, the facts and documents that form the

basis of his opinion, the applicable standard of care, specifically what Appellant

should have done but failed to do, breach, causation, and the resulting injury. His

report certainly meets the "good faith" standard, as the trial court correctly

determined. The trial court's determination was not an abuse of discretion-- it was

in no way "an arbitrary or unreasonable [act] without reference to any guiding rules

or principles" -- and it should be affirmed.

4

ARGUMENT AND AUTHORITIES

I. STANDARD OF REVIEW

A trial court's order granting or denying a motion to dismiss filed under

Section 74.351 of the Texas Civil Practices and Remedies Code is reviewed under

an abuse of discretion standard. Hendrick Med. Ctr. v. Texas Podiatric Med. Ass'n,

392 S.W.3d 294, 296-97 (Tex. App.-Eastland 2012, no pet.); Bowie Memorial

Hasp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am. Transitional Care Ctrs. v.

Palacios, 46 S.W.3d 873, 875, 877-78 (Tex. 2001 ). An abuse of discretion occurs

if the court acts in an arbitrary or unreasonable manner without reference to any

guiding rules or principles. Wright, 79 S.W.3d at 52. A court of appeals may not

substitute its own judgment for the trial court's judgment. !d.

II. DR. LIPSON IS QUALIFIED

Appellant complains that Dr. Lipson is not qualified under TEx. CN. PRAC.

& REM. CODE § 74.402 (be a healthcare provider or consultant in "same field" as a

defendant, knowledge of the standard of care and qualified on basis of training or

experience) and § 74.403 (i.e., be a physician and be otherwise qualified).

Dr. Lipson is a nationally prominent physician, professor, lecturer and

consultant in geriatric medicine, abuse of the elderly and related topics. Dr.

Lipson's qualifications are extensive; he may be the most qualified expert in the

country and is the one the U.S. Department of Justice and the U.S. Department of

5

Health and Human Services retain when they need expertise in this area. He is

qualified under both TEX. CIV. PRAC. & REM. CODE §74.402 and §74.403.

A. SUMMARY OF DR. LIPSON'S QUALIFICATIONS

1. Educational Background in Geriatric Medicine

Dr. Lipson is a graduate of UCLA and The John Hopkins University School

of Medicine. (See Dr. Lipson's CV, CR 24-67 1). Dr. Lipson did his internship and

residency at The John Hopkins Hospital. Dr. Lipson has fellowships from Harvard

(Geriatric Medicine), Beth Israel Hospital (Gerontology), Brigham-Women's

Hospital (Gerontology), Hebrew Rehabilitation Center (Geriatric Medicine) and

John Hopkins (Clinical Fellow) among others. Id.

2. Certification in Geriatric Medicine

He is boarded in Internal Medicine and Quality Assurance and Utilization

Review and holds a Certificate of Expertise in Geriatric Medicine from the

American Board of Internal Medicine. Quality assurance is the study and

implementation of improvements to care provided, in Dr. Lipson's case, for the

elder population in both the nursing home and hospital setting. I d.

3. Twenty-Seven Academic Appointments in Geriatric Medicine

Dr. Lipson has received twenty-seven academic appointments to include

John Hopkins, Harvard Medical School (Scholar Geriatric Medicine),

1

Appendix 1 to Appellee's Brief.

6

Massachusetts General Hospital, USC (Associate Professor-Geriatric Medicine),

USC (Chief-Division of Geriatric Medicine), Brigham-Women's Hospital

(Geriatric Medicine), Beth Israel (Geriatric Medicine), USC (Gerontology

Research Institute) and University of Alaska (Geriatrics). His teaching

responsibilities include USC-Fellowship Program-Geriatric Medicine, USC-

Development and Improvement of Geriatric Medical Curriculum, USC-Steering

Committee-Pacific Geriatric Education Center, and USC-Ethel Percy Andrus

Gerontology-Director and lecturer. His teaching responsibilities at the University

of Alaska also include Director-Care of Elderly, Co-Director in Geriatric

Education and Faculty Consultant to Geriatric residents. !d.

4. Geriatric Administrative Positions, Including Directorships

Dr. Lipson has further served in numerous administrative positions to

include Chief of Division Geriatric Medicine, Senior Staff Physician-Geriatric

Programs, Director of the USC Ambulatory Health Center Japanese Retirement

Homes, Director-Geriatric Medicine VA Clinic, Director of USC Teaching

Nursing Home Program, Director of Senior Cancer Center, Director of Senior Care

Program-USC, Co-Director-Adult Protective Team-Geriatric Medicine Program-

LAC/USC, Medical Director-Alaska Geriatric Education Center and Medical

Director National Resource Center for Studies in Native American, Alaskans and

Hawaiian Elders, University of Alaska. !d.

7

5. Geriatric Consultancies: Boards, Program Development

His public service includes Consultant-Geriatric Medicine-State of

Alaska, Board of Directors, California Association of Medical Directors, and Task

Force on Elder Abuse, City of Los Angeles. I d.

Dr. Lipson's consultancies include Geriatric Medicine-Silverado Senior

Living Centers, Geriatric Medicine-Glendale Adventist Medical Center, Geriatric

Program Development-Bay Shores Medical Group, Geriatric Program

Development-San Dimas Community Hospital, Geriatric Program Development

and Long Term Care-The Motion Picture & Television Home, Long Term &

Geriatric Medicine- State of Califo1nia, Elder Abuse & Geriatric Medicine -

State of California, Office of the Attorney General, Long Term Care, Elder

Abuse and Geriatric Medicine-State of California-Office of the Attorney

General - Medicaid Fraud, Geriatric Medicine and Elder Abuse-State of New

Mexico, Geriatric Medicine and Elder Abuse-United States of America-

Department of Justice, and Long Term Care, Geriatric Medicine and Elder

Abuse-United States of America-Department of Health and Human Services-

Office of the Inspector General. I d.

6. Lectures on Elder Abuse: Washington U; Harvard; Stanford;

Yale; Brown; Baylor, etc.

Dr. Lipson has lectured all over the country on issues involving geriatrics,

long term care, and elder abuse. The lectures include Washington University,

8

Harvard, Yale, the University of New Brunswick, the University of Florida,

Stanford, University of Pittsburgh, University of Hawaii, University of California

San Francisco, Brown, University of Nevada, University of Guam, ICansas

University, Baylor, Chicago Medical College, University of Oklahoma, University

of Colorado, University of l(entucky, University of Utah, Southern Illinois

Medical School, Allegheny Medical School, University of Arizona as well as many

others. ld.

Dr. Lipson has published numerous peer-reviewed articles, book chapters

and monograms dealing with the care of the elderly. ld.

B. DR. LIPSON IS QUALIFIED TO OFFER CAUSATION

OPINION

1. Dr. Lipson Does Not Need to "Diagnose" the Sexual Assault

Mrs. Rivera's daughter found her crying and confused, in pain, with a pile of

bloodied tissues in the trashcan and broken Christmas decorations on the floor of

her room. (CR 73-74.) Ms. Mahan noticed her mother appeared to be in pain and

urinated while standing up, which was very unusual, and ultimately took her to St.

David's Hospital. (CR 74.) Mrs. Rivera was examined by a Sexual Assault Nurse

Examiner (SANE nurse), who found specific evidence of vaginal trauma; she had

bruising to both the front of the vagina as well as the posterior of the vaginal wall.

(CR 98, 100.) The SANE nurse concluded that her exam "definitively indicate[s]

9

penetration of the female sexual organ." (CR 100.) She recommended that Mrs.

Rivera have an HIV and other STD tests conducted. (CR 78.)

Appellant strangely treats sexual assault as a disease to be diagnosed and

treated. Appellant argues that Dr. Lipson is not qualified to issue opinions about

whether Mrs. Rivera was sexually assaulted because his report does not show "that

he has ever examined a patient for sexual assault, diagnosed a patient with sexual

assault, or treated a patient for sexual assault." (Appellant's Br. at 12.)

In a health care liability case resulting from a patient's sexual assault by

another patient while under the defendant's care, there is no requirement that

the expert opine that the victim was sexually assaulted. UHS of Timber/awn,

Inc. v. S.B. ex rei. A.B., 281 S.W.3d 207, 211-13 (Tex. App.-Dallas 2009, pet.

denied). In UHS of Timber/awn, Inc., the Dallas Court of Appeals rejected the

identical argument Appellant makes - nearly verbatim - here.

Timberlawn asserts Levine's revised report and curriculum

vitae do not establish he is qualified to render an opinion as to

causation, and the revised report is inadequate and conclusory as

to that issue. These arguments all flow from Timberlawn's

position disputing whether S.B. was, in fact, raped.

Timberlawn contends that, absent a statement in Levine's

revised report (presumably based on all reasonable medical

probability) that S.B. was in fact raped, Levine's revised report

fails to identify the {(causal relationship between [Timberlawn' s

actions] and the injury, harm, or damages claimed." See TEX. CIV.

PRAC. & REM.CODE ANN.§ 74.351(r)(6). Timberlawn argues Levine

did not opine, nor did he show he was qualified to opine, as to

10

1/1. Normal Aging vs. Disease. Symposhtm on Geriatric Medicine. Annenberg

Centerl Rancho Mirage. Californi~ 2/202.

172. Medications in the Eldedy, Memorial Lecture Series, Outpatient

Department, Veterans Administration~ Los Angeles, California, 2/26/0'2.

173. Life Style Redesign in Elder Ca:ro. zua Annual North- Ame.dcan Forum on

Women's Health! Anah~im~ California} 3/1/02.

174. Dementia in the Elderly. Memorial Looture Series, Outpatient Department~

Vetet·ana Adminfstra.tto:n, Los Angeles:. California; ::l/12/02.

175. Diabetes in the Elderly. Endocrine Orand Rounds, Harbor General

Hospital, Torranoe, California, 4/l/0/2.

176. Medications in the Elderly. Mtllll..lecture series~ Co1111'riissloh on Aging~

I" ,,

~f ' • ., .. State of Alaska, Anchorage and Fairbanks,' 4112/02.. 4/26/02.

177. Treatment (!f l)aiti in. the. Elderly. Care o£ the Eldei'ly Cortfereno~\

Univel'sity of Alaska~ Sitka Sitka, Alnska~ 9/19/02.

178. Treatment of Cardiovascular Risk Factors in the Elderly. Care of the

Eldetly Conference~ University of Alaska> SitkaJ. Alaska 9/19/02.

179. Special Issues in Long Tenn Cat·~, Assessment and Evaluation of the

Artcho:rage Plorteers' Home; Anchorage~ Alaska, 12!10~12/14/02.

180. Identification and Treatment of Cardiovascular Risk Factors in 'lhe Elderly

- A symposium Montgomery Cardiology · Programs. Montgotnety~

Alabama> 3/2l/03~

I ••• un. Me4ications in the Eldel'ly, Multi..lecture serlesj Connnission,on Aging>

State of Alask~ Anchotage and Fairbanksi 4/23 ..4/26/03.

182. Assess1nent of Mental Competency and Discussion of an Elder Abuse

Case. Symposium on Eldet Abuse) Departtnent of Justice .... Bureau of

Medi~Cal Praud and Bldet Abus~~ Squaw Valley; California, 5/27~-5/30/03.

183. Medications in the Elderly. Multi-lecture series, Commission on. Aging,

State of Alt'\ska;,Juneau and K6tchU~JUl, 6127-6129i03.

i84. De1nentla in the Elderly: Medications in the Elderly. Csx~ of the Elderly

Conference~ University ofAlask~ Sitk~ Sitka~ Alask~ 9/18w9/19/03.

18S. Demerttiay Gerlatdc Symposium:.... St. Mmy~s Hospital and Soan, tong

Beach, CaUfonlia; 10/4/03. i

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APPENDIX 1

51

I

relevant to its treatment of her, she was raped. Rape is not a

medical condition. It is an assault. Moreover, rape may-or may

not-be accompanied by medically ascertainable evidence of

physical trauma, or even physical evidence that it occurred.

Medical evidence of an alleged sexual assault is not required

even in criminal prosecutions; the rule in Texas is that

((penetration may be proven by circumstantial evidence." See

Villalon v. State, 791 S.W.2d 130, 133 (Tex.Crim.App.1990) ....

We decline to hold that in order to identify the causal

relationship between Timberlawn 's actions and S.B. 's claimed

injury, see TEX. CIV. PRAC. & REM.CODE ANN.§ 74.351(r)(6), she was

required to proffer an expert report opining that she was in

fact raped. Thus we reject Timberlawn's arguments that the trial

court erred in not dismissing S.B.'s claim because: (1) Levine's

report did not show him to be qualified to render an opinion on

whether S.B. was in fact raped; and (2) because Levine's report

did not render an opinion on that issue.

UHS of Timber/awn, Inc. v. S.B. ex rei. A.B., 281 S.W.3d 207,211-13 (Tex. App.-

Dallas 2009, pet. denied) (emphasis added).

Sexual assault is not a disease, and this is a case about negligence in nursing

home health care, not gynecology; Mrs. Rivera was injured as a result of

Appellant's multiple failures in protecting her from sexual assault. The Court's

inquiry should focus on whether the expert has the "knowledge, skill, experience,

training or education regarding the specific issue before the Court which would

qualify the expert to opine on a particular subject." Tenet Hasp. Ltd. v. Love) 347

S.W.3d 743, 749-50 (Tex. App.- El Paso 2011, no pet.) The specific issue before

the court is the nursing home's breach of its duty to protect its patient from sexual

assault, despite being put on notice of a prior sexual assault and inappropriate

12

behavior towards Mrs. Rivera by males at the facility. See Diversicare Gen.

PartnerJ Inc. v. Rubio, 185 S.W.3d 842, 850 (Tex. 2005) (involving sexual assault

by another resident; nursing home is obligated to protect "the patient population

from harming themselves and each other").

2. Dr. Lipson Properly Relies on the Medical Records and

Exa1nination by Sexual Assault Nurse Examiner

Appellant argues that Dr. Lipson is not qualified to offer causation opinions

under TEX. Crv. PRAc. & REM. CODE § 74.403(a). Under Section 74.403(a), "a

person may qualify as an expert witness on the issue of causal relationship between

the alleged departure from accepted standards of care and the injury, harm, or

damages claimed only if the person is a physician and is otherwise qualified to

render opinions on that causal relationship under the Texas Rules of Evidence."

Dr. Lipson is a physician. CR 15.2 He is also qualified to render opinions on that

causal relationship under the Texas Rules ofEvidence. 3

Appellant suggests that Dr. Lipson may not rely upon the SANE nurse report

or the medical records in detennining that Mrs. Rivera was sexually assaulted. But

Dr. Lipson properly relies on medical records available to him. The assault has

been copiously documented by the SANE nurse and a doctor and reviewed by Dr.

2

Appendix 1 to Appellee's Brief.

3

See generally Tex. R. Evid. 702 (a qualified witness may testify in the form of an opinion if it

will help the trier of fact to understand the evidence or to determine a fact in issue) and 703 (an

expeti may base an opinion on facts or data that the expert has been made aware of, reviewed, or

personally observed).

13

Lipson. (See CR 78-100.) The SANE nurse found bruising to both the front of the

vagina as well as the posterior of the vaginal wall. (CR 98, 100.) The nurse stated

that the findings "definitively indicate penetration of the female sexual organ."

(CR 100.) In arguing that Dr. Lipson is unqualified, Appellant does not even

mention the SANE nurse report or her declaration.

Appellant's argument that Dr. Lipson cannot rely on the SANE examination

or other medical records ignores TEX. R. EVID. 703 and strains credulity. It is like

saying a surgeon could not rely on a radiologist's reading of an MRI to provide the

opinion that a patient had a brain tumor. Experts can undoubtedly rely on medical

records (and even hearsay) in formulating an expert report. See TEX. R. EVID. 703

(expert may base opinion on facts or data that the expert has been made aware of,

reviewed, or personally observed, including facts or data that would not normally

be admissible so long as experts in that field would reasonably rely on those kinds

of facts or data). As the court noted in Palacios,

[A] plaintiff need not present evidence in the report as if it were

actually litigating the merits. The report can be informal in that the

information in the report does not have to meet the same requirements

as the evidence offered in a summary-judgment proceeding or at trial.

See, e.g., Tex. R. Civ. P. 166(f) (setting out the requirements for the

form and content of affidavits offered as summary-judgment proof);

Tex.R. Evid. 802 (stating that most hearsay is inadmissible).

46 S.W.3d at 879.

14

Expert witnesses must be able to rely upon the medical records to render

op1n1on. Expert witnesses may rely on witness statements. If one follows

Appellant's argument to its logical conclusion, experts could not rely on the

nursing home chart (made mostly by nurses), the medical records (made by nurses

and treating doctors whose resumes are not available). This is not the law in

Texas.

A reading of the statute and the relevant case law make it clear that the

limitations of § 74.402 and § 74.403 do not apply to the underlying information

reviewed by experts, such as the medical records or SANE nurse examination.

Indeed, the Texas Supreme Cou1i has expressly stated that expert reports would

likely be inadequate if they did not look at the medical records. See Loaisiga v.

Cerda, 379 S.W.3d 248, 261 (Tex. 2012) (involving the sexual assault of patients).

The Supreme Court also held in the same case that experts could rely upon the

pleadings on file in the case to render expert opinions. Id. Even a case relied on

by Appellant's notes that "section 74.351 does not prohibit experts, as opposed to

courts, from making inferences based on medical history." Cortez v. Tomas, 02-

11-00231-CV, 2012 WL 407382, at *2 (Tex. App.-Fort Worth Feb. 9, 2012, no

pet.) Dr. Lipson may properly rely on the SANE nurse examination and other

medical records in reaching his conclusions.

3. The Cases Appellant Relies On Are Distinguishable

15

Broders v. Heise, 924 S.W.2d 148 (Tex. 1996); Cortez v. Tomas) supra)· and

Pediatrix Med. Servs. Inc. v. De La OJ 368 S.W.3d 34 (Tex.App.-El Paso 2012,

no pet.), on which Appellant relies, are distinguishable. In those cases, simply put,

the expert at issue did not have experience in the area of health care at issue. For

example, in Broders, a hospital and physicians were sued after allegedly failing to

diagnose head trauma, resulting in death. In affirming the trial court's evidentiary

ruling, the Texas Supreme Court noted that there was no evidence that Plaintiffs

expert, while a physician, had experience or knowledge about the effectiveness of

treatlnents for head trauma. Id. at 153.

In contrast to Broders and the other cases Appellant cites, Dr. Lipson is

highly qualified in the precise area of health care at issue. Based on his knowledge

and experience, he is qualified to testify that Appellant should have been able to

prevent Mrs. Rivera's sexual assault. He has taught future nursing home directors

at multiple Tier 1 universities and governmental entities. In his CV there are at

least 9 references to lectures, courses and papers relating to "Elder Abuse." There

are over 30 references .to geriatrics, including fellowships at Harvard. There are

multiple references to his directorships over programs and facilities involving care

for the elderly. His experience includes consulting at nursing homes and

gove1nmental entities on the operation of nursing homes. He is familiar with

treatment of patients like Mrs. Rivera and familiar with the training of employees

16

providing care to residents like Mrs. Rivera. He is board certified in Quality

Assurance. Dr. Lipson has spent many years learning, lecturing, writing, and

testifying on nursing home abuse issues. (See Dr. Lipson's Dec. and CV, CR 15-

67.)

4. The Degree of Appellant's Negligence Does Not Protect It

From Liability

Appellant argues that Dr. Lipson's inability to identify the attacker or the

precise time Mrs. Rivera was attacked means that he is unqualified. (See

Appellant's Br., 21-22.) Appellant's position is that Mrs. Rivera's suit cannot go

forward because the attacker was not apprehended. The reason the attacker was

able to sexually assault Mrs. Rivera in the first place, and the reason he was not

apprehended, was because Appellant did not timely check on Mrs. Rivera in her

room, adequately patrol the halls, or have Mrs. Rivera moved to a more observable

location. Appellant treats its own negligence as a defense; it essentially argues that

it cannot be held liable because its failure to monitor and protect Mrs. Rivera was

so egregious that that attacker cannot be identified and the precise time of the

assault cannot be determined. Sticking one's head in the sand cannot be a defense.

Further, if anyone had superior access to this information, it was Appellant, whose

agents destroyed the bloody rags, evidence of a crime, when given the opportunity.

To meet the requirements of Section 74.351, Dr. Lipson does not have to be

omnipotent. He does not have to succeed where the Austin Police Departtnent

17

failed by identifying the attacker and sleuthing out other details of the assault.

Those details are irrelevant to the cause of action being asserted. No jury is going

to be asked to identify the rapist was or determine precisely when the rape

occun ed. The relevant issues addressed by Dr. Lipson are: what do the records say

4

about Mrs. Rivera's assault; what is the standard of care with respect to the assault;

did Appellant breach the standard of care concerning the assault; and, was Mrs.

Rivera injured as a result of that breach. In short, should this nursing home have

prevented Mrs. Rivera's sexual assault? Dr. Lipson is well qualified to render

those opinions.

C. DR. LIPSON IS QUALIFIED TO OFFER OPINIONS ON

STANDARD OF CARE AND BREACH

In what appears to be a copy-and-paste job of other appeals Appellant has

likely filed in similar cases, Appellant argues that Dr. Lipson is not qualified to

opine on the standard of care for nursing homes, or breach of such standard of care.

Appellant appears to have overlooked the pages and pages of Dr. Lipson's CV

setting out his experience, described in this brief supra. Dr. Lipson is well

qualified to opine on nursing home elder abuse. He is, in fact, perhaps the most

qualified person in the country to opine on this subject. The trial court acted

within its discretion in concluding that Dr. Lipson is qualified to render his

opinions on the standard of care and breach at issue in this case.

18

... ;.:

,;=t

- ··::tt ~- 0·

PART A .. PATIENT INFORMATION ".PLEASE COMPLETE P.ART A AND PART B

(£,, Today's Date: /d___tJvJ3_ Have you received .c~ Facility Before? 0 Yes D No

I came to the Emergency Department today because~ ~ I

T FOR FEMALE PATIENTS ONLY: Are you pregnant? DYes

I Last menstrual period: _ _/_~/_ _ Have you had a baby within the past six weeks? DYes~~-

E~F~o~rm~co~m~p~le~te~d~b~y:~O~S~e~lf~·==~~~~~~============~~R~e~la~tio~n=sh~ip~:~~~~~~~~~~~~~~~~~~==

N PART B .. CURRENT SYMPTOMS

~-------------------------------------------------------------------------

1 Please check any of the following symptoms you surre-ntly have:

D Persistent cough greater than 3 weeks ErS__,_Throat

D Fever greater than 100.4oF C}t:rody aches

D Night Sweats D Cough (not related to allergies or COPD)

D Cough with blood production D Rash

D Fatigue D Nasal congestion (not related to allergies or sinus infections)

0 History of TB or Positive TB Skin Test 0 Close contact with person who has lnfluenza-Jil<e illness

D Close contact with person who has TB D Unexplained weight loss

PART C .. TRIAGE INFORMATION (For Facility Use Only) 'S: lA- '.\J.~_t-...._f ·-

1st Call for Triage at: 2nd Call for Triage at: 3rd Call for Triage at: / 4th Call for Triage at:

AM PM .. AM PM AM PM AM PM

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Time: First Point of Contact Screening Positive: D Y D N Patient requested to mask? D Y D N

c AIRWAY: D Patent D Impaired BREATHING· Respiratory Distress: 0 None D Mild, 0 r9-d~e ~ Se::fe

I CIRCULATION: D Warm/Dry/Normal Color D Pale D Diaphoretic ~; Sc:f ) /_a I

L Pulse Rate: D WNL D Rapid Capillary Refill: D < 2 seconds D > 2 seconds

DEFORMITY/DISABILITY .. Loss of Consciousness: DYes DNo 0 No Neuro Deficits 0 Neuro Changes

I Extremity: Neurovascular Integrity Intact: DYes ON/A

DNa

T CHIEF COMPLAINT:

y

I TRIAGE ACUITY: 1 Resuscitation 2 Emergent 3 Urgent 4 Semi Urgent 5 Non Urgent

DISPOSITION: D Immediate Bed D Stable- To Walling Area after Instructions ~

Comments: ~· {~

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Triage Nurse Signature:

·~yfa\ ,-' --=s<-es·- ':):i,

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11111111111111111111111111111111111

(;:) MARY DELAROSA ·

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Sign~ln

Sheet ·for

Ernergency Services

T3107BC (Rev. 7/i2)

~OJ__ APPENDIX 1

Parfb& of

PATIENT INFORMATION FOR OFFICE USE ONLY

f}fL+d._r:t

mt+~u

PATIENT'S NAMErn MRNo.: ACCTNo.:

ADDRESS 1: DOS: LOCATION

ADDReSS 2: I COMMENTS/COMPLETION DATE:

ClTY, STATE, i Cf /)(f) (' '7l;t 7&6/~

FACILITY FROM WHICH PHI WILL

BE RELEASED (Check all that ap_pj'l)

DATES OF

SERVICE

BIRTH DATE: {) St. David's Hospital r/-tl--t_~

SOCIAL SECURitY' NO.: I ' St. David's Rehabilitation Center

(Optional) St. David's Georgetown Hospital

CONTACT NUMBERS:

Other

FACILITY/PERSON TO WHOM PHI WILL BE RElEASED/DISCLOSED: PURPOSE OF DISCLOSURE: (Note:** IJPdicates Foe for Copies}_

Avc;_-fiV\ \Pn l) ( e

NAME: Follow Up Care

Insurance**

ADDRESS 1: Attorney**

Personal Usek* I

ADDRESS2: It

'-f Other** Please Explain L-(___.~

CITY, STATE, ZIP: METHOD OF RELEASE/DISCLOSURE:

1

0 Fax (t::me~ cy Only) Fa}!)umb~~~

CONTACT NUMBERS:

0 Mall ther ' ( /JL) rL . (

INFORMATION TO BE USED/DISCLOSED: (Check aJI that apply) 1 t

·-

Is this request for psychotherapy notes? 0 Yes, then this is the only Item you may request on this authorization. You must submit another authorization for other Items below;·-

0 No, then you may check as many Items below as you need,

D Pertinent Package 0 EKG, EEG, EMG 0 Pathology Slides 0 Psychiatric Evaluatlons{Tests

D Front Sheet 0 Laboratory Report 0 Physician Orders 0 Infections Disease (Including HIV Test Results)

0 Discharge summary 0 EA Information 0 Progress Notes 0 Consultations

D History/Physical 0 Imaging Reports (X·rays, CTs, MRis) 0 Nursing Information ~omplete Copy

0 Operative ReporVProcedure

0 Cathl.ab

0 Imaging Films

0 Pathology Report

0 Medication Records

0 Therapy Notes

~~~~lzatlon Record '~P1Slcc· .\

J understand that:

1. I may refuse to sign this authorization and that It Is strictly voluntary.

2. My treatment, payment, enrollment or eligibility for benefits may not be conditioned on signing this authorization.

3. Medldallnformation Is considered Protected Health Information (PHI) under both Federal and State Privacy Laws.

4. Unless otherwise specified, this authorization shall expire 180 days from the date of my signature, OR from the date of discharge, whichever Is later.

(Othervvlse spectfled date )

5. I acknowledge, and hereby consent to such, that the released information may contain alcohol, drug abuse, psychiatric, HIV testing, HIV results or AIDS

information.

6. A facility may not condition the provision of treatment to an individual on signing an authorization except for:

1. · Research-related treatment; and

2. Health care that Is solely for the purpose of creating Information for disclosure to a third party.

7. I may revoke an authorization In writing except to the extent that:

i, The facility has taken action prior to receiving the revocation; or

2. If an authorization was obtained as a condition of obtaining Insurance coverage.

Further details may be found In the Notice of Privacy Practices. --

8. If the requester or receiver Is not a health plan or health care provider, the released Information may no longer be protected by federal privacy

regulations and may be redlsclosed.

9. I understand that I may see and obtain a copy of the Information described on this form, for a reasonable copy fee, If I ask for it. There Is a fee for copy

setvlces rendered.

1o. I will receive a copy of this form after I sign it.

SIGNATURES

J have read the above and authorize tl)p disclosure of the protected health information as~staled.

s~c;::J!Vhori2J~ cU-UL---- Date: !f/;J(~

Witness (If applicable}:

, • v

Wttness (If Applicable): -

Cl\ J(Ll{d '1Clf\\

,) I

Print Name of Patient or Authorized Party: Relationship to Patient:

StDavid's I MEDICAL CENTER

Authorization for Release of Protected Health Information

RIVERA.I1ARY DELAROSA ER

Acct;ff: L00071683103M/R#: L001022503

loc:L.ER IF

Dr: CEA 11/12/13

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APPENDIX 1

'52626 (02/20/i 2) Page8'Pf 1

III. THE REPORT IS A GOOD FAITH EFFORT TO COMPLY WITH

CHAPTER 74

Appellant also complains that Dr. Lipson's report does not provide it

adequate notice ("good faith effort") under TEX. Crv. PRAC. & REM. CODE

§74.351(1). To qualify as a good faith effort, it must inform the defendant of the

conduct called into question and provide a basis for the trial court to conclude the

claims have merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011). The

Supreme Court's position on expert reports is well described.

The expe1i report must represent only a good faith effort to provide a

fair summary of the expert's opinions. A repo1i need not marshal all

the plaintiffs proof, but it must include the expert's opinion on each

of the elements identified in the statute.

Am. Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878

(Tex. 2001 ). A "fair summary" is "something less than a full statement of the

applicable standard of care and how it was breached," it merely "sets out what care

was expected, but not given." Id. at 880. Dr. Lipson's detailed report exceeds this

standard.

A. SUMMARY DR. LIPSON'S REPORT

1. Dr. Lipson's Review of Pertinent Medical and Other Records

Dr. Lipson's repo1i sets out in detail the information he reviewed in order to

render his opinions. They include:

a. The statement of the daughter Martha Mahan;

21

RIVERA. MARY 11/12/2013 11:15 MR# L001022503 Visit# L00071683103 Clinical Report" Nurses 3 of3

15:1 0. Reassessment after procedure. The patient reports no complaints and the patient is calm and

resting quietly. Patient reports current pain level as 0/10. Overall patient status Is improved~ the patient

states feels better. ED physician notified about patlent1s status. --15:10 Jenny Black, R.N.

15:26. (APD VS here with patient and family. APS referenence number 64190731. APD VS is working

with guardian to move patient to a different ·nursing home. If that is not possible, APD VS will contact

current nursing home to assure patient's safety there.). -~15:26 Jenny Black, R.N ..

Assault I Forensic Flowsheet

15:09. The patient has family for support. Personal safety plan, reporting plans, STD and contraceptive

prophylaxis, need for medical follow-up, counseling, coping/fear reduction and interventions/services

discussed with patient. The patient has been given education and resource materials. --15:09 Jenny

Black, R.N ..

DISPOSITION I DISCHARGE

15:28. BP: 165/70 sitting. HR: 90. RR: 18. Temp: deferred. Condition at departure: improved and

stable. Patient reports pain level on departure as 0/10. The goals identified in the patient's plan of care

were met. The following issues were addressed: psycho-social issues, pain control, comfort issues,

nutritional issues, educational issues and follow up care. Fall risk assessment completed. No fall risk

identified. No learning barriers present. Discharge Instructions provided and reviewed with the patient.

Reviewed referral to family practice, a women's shelter, Planned Parenthood, the public health departmen1

and crisis hotllne for followup and testing. Summary of care provided to famHy. Patient and family

verbalized understanding. Written Instructions provided in English. Guardian verbalized understanding.

The patient was discharged by the physician. The patient was discharged to the nursing home and

accompanied by guardian. The patient left the Emergency Department ambulatory and via private vehicle.

Driving (guardian.). --15:28 Jenny Black, R.N.

15:28.

Departure time; 15:28. --15:28 Jenny Black, R.N.. .

The patient's home medications have been reviewed and validated with patient by the nurse. -.-15:28

Jenny Black, R.N ..

This report is not final

APPENDIX 1

90

3. Dr. Lipson Carefully Reviews Nursing Home Chart and

Ms. Mahan's Statement

Dr. Lipson then conducts a careful review of the nursing home chart to

establish the fact that Mrs. Rivera had very poor short and long term memory

problems and often did not remember people or where her room was. Dr. Lipson

goes on to opine that due to her significant mental limitations, Mrs. Rivera required

careful monitoring by the staff. (CR 17.)

Dr. Lipson then reviews the statement of Martha Mahan, Mrs. Rivera's

daughter and guardian. Ms. Mahan's statement discussed parties on Friday

afternoons where alcohol is served to the residents. Ms. Mahan reports that certain

male residents acted inappropriately towards Mrs. Rivera and that this fact was

reported to the management. (CR 17.)

Dr. Lipson then reviews the facts surrounding the discovery of the broken

glass, bloody rags and distressed Mrs. Rivera. He then notes that an external head

to toe exam was done on Mrs. Rivera which found no exterior wounds. No vaginal

exam was done. (CR 17-18.)

Dr. Lipson then discusses the calling of the police and the examination done

at St. David's Hospital by SANE nurse Jenny Black. Dr. Lipson notes the injuries

to both the posterior and anterior portions of the vagina. He further reviewed the

statement of the SANE nurse indicating definitive "penetration of the female

sexual organ". (CR 18.)

23

4. Dr. Lipson Reviews Literature on Sexual Assaults in Texas

Dr. Lipson then cites literature for the disturbing fact that in the four years

leading up to Mrs. Rivera's assault nearly 400 sexual assaults we!e reported in

Texas nursing homes. Dr. Lipson further relates the fact that those who suffer

from dementia are at particularly high risk for this type of abuse as they are very

poor historians. (CR 18.)

Dr. Lipson then goes on to discuss how these assaults can be prevented. He

notes that these facilities all provide 24-hour skilled nursing care as required by

law. This means the facility must have skilled nurses as well as certified nursing

aides on staff twenty-four hours a day three hundred and sixty-five days a year.

(CR 18-19.)

Dr. Lipson goes on to review the literature and reports that most of these

assaults occur at night and if a facility has a history of reported assaults they are at

a greater risk for additional incidents. He then reviews the history of reported

assault, non-compliance and management awareness of these issues. Dr. Lipson

reviews the generallmowledge within the industry of these assaults and the press

coverage regularly offered this issue. (CR 19.)

5. Dr. Lipson- Rivera's Injury Foreseeable and Defendant Owed

Duty to Rivera

He then opines that with the significant number of assaults in Texas nursing

homes, the recent history of reported assault in Defendant's facility, and the

24

complaints of the daughter Martha Mahan, that it is foreseeable assaults would

occur if precautions are not taken. He then opines a nursing home owes a duty of

protection to patients suffering from mental incapacity. He then writes that such

patients require enhanced supervision and additional staff time to protect them

from others. This is patiicularly true, he states, in a facility with a history of

reported assault and a history of family complaints of inappropriate behavior

towards Mrs. Rivera. (CR 19.)

6. Dr. Lipson Sets Out Standard of Care

After pages of detail concerning the facts, the records and the foreseeability,

Dr. Lipson then sets out the standard of care:

The standard of care requires the nursing home provide twenty-

four hour a day skilled nursing care. The practical result of this

requirement is that the staff must be moving through the halls

and the rooms of the residents all night long. There should

never be a time when a staff member is not in the next room or

moving through the halls next to a resident's room.

The standard of care requires that following the report of an

assault at a nursing facility that the facility control unsupervised

access to the rooms of residents at risk. The standard of care

requires the facility take note of the families' concerns of

inappropriate behavior and eliminate access to the patient ·by

unsupervised males. Residents at risk include women with

significant dementia such as Ms. Rivera. In light of the

family's expressed concern of inappropriate advances to Ms.

Rivera, the standard requires heightened scrutiny to include

regular walks through the entire hall at intervals not to exceed

ten minutes to prevent access to her room by males. The

standard of care requires the nursing staff document the fact

that it is performing the regular checks in the patients' charts.

25

In addition, the standard of care requires Ms. Rivera be moved

to a room in close proximity to the nursing station following

complaints of inappropriate contact with Mrs. Rivera.

(CR20.)

7. Dr. Lipson Identifies Breaches of Standard of Care

Dr. Lipson then set out the breaches of the standard of care.

The facility breached the standard of care by not providing

twenty-four hour skilled nursing care. The nursing staff was

not present in the halls or her room to prevent the sexual assault

ofMs. Rivera.

The facility breached the standard of care by not preventing

access to her room by unsupervised males. The records do not

indicate any checks on Ms. Rivera the night she was assaulted.

The facility breached the standard of care by not moving Ms.

Rivera to a room close to the nursing station where no

unsupervised males could enter her room.

(CR20.)

8. Dr. Lipson Identifies the Harm to Mrs. Rivera

Dr. Lipson then sets out the harm caused. The harm caused Mrs. Rivera is

significant. She was sexually assaulted. The injuries to her vagina are well

documented in the SANE nurse report and above. The daughter reports she was

tearful and afraid. This is a common response in sexual assault victims. The

daughter reports this behavior of fear continued even after Mrs. Rivera was

removed from the facility. The fact she suffered from dementia does not lessen the

harmful mental effects of sexual assault. Even an animal can remember when it

26

has been abused. In many ways Mrs. Rivera was like a small child - confused and

afraid as a result of this sexual assault. The history of problems together with the

decision to ignore the families' complaints and eliminate unsupervised males from

Mrs. Rivera's room indicates a conscious disregard for the well-being of Mrs.

Rivera by the facility's management. (CR 20-21.)

9. Dr. Lipson Eliminates Other Causes of Injury

Dr. Lipson then considers other potential causes of this injury. He considers

whether the injuries may be self-inflicted, but discards this idea after a chart review

found no indications of sexual self-stimulation or self-abuse. He further

considered whether the family might have caused these injuries but again discards

this idea after a chart review indicates the family was nothing but supportive. Dr.

Lipson further notes Mrs. Rivera was in the nursing home at all relevant times and

there was no indication she was assaulted on the way to the hospital to check to see

if she had been sexually assaulted. (CR 21.)

In short, Dr. Lipson explains the background facts, his review of the medical

and factual history, explains the problem with sexual assaults in nursing hotnes,

explains the standard of care, the breaches of the standard of care as well as the

harm caused. His report explains the Defendant's conduct called into question and

provides detailed information for the trial court to determine the claims have merit.

27

B. THE REPORT IS SUFFICIENT AS TO BREACH AND

CAUSATION

Appellant argues Dr. Lipson's report is deficient as to breach and causation.

Appellant attempts to put requirements on Dr. Lipson's report that exceed those

required under the Civil Practices and Remedies Code, and ignores what is actually

stated in his report. Appellant's assertions that the report is insufficient in this way

or that way fall apart under examination.

Dr. Lipson expressly details the breach of the standard of care 1n his

declaration. See CR 20, quoted supra. Dr. Lipson states in his report:

The standard of care requires the nursing home provide twenty-

four hour a day skilled nursing care. The practical result of this

requirement is that the staff must be moving through the halls

and the rooms of the residents all night long. There should

never be a time when a staff member is not in the next room or

moving through the halls next to a resident's room.

The standard of care requires that following the report of an

assault at a nursing facility that the facility control unsupervised

access to the rooms of residents at risk. The standard of care

requires the facility take note of the families' concerns of

inappropriate behavior and eliminate access to the patient by

unsupervised males. Residents at risk include women with

significant dementia such as Ms. Rivera. In light of the

family's expressed concern of inappropriate advances to Ms.

Rivera, the standard requires heightened scrutiny to include

regular walks through the entire hall at intervals not to exceed

ten minutes to prevent access to her room by males. The

standard of care requires the nursing staff document the fact

that it is performing the regular checks in the patients' charts.

In addition, the standard of care requires Ms. Rivera be moved

to a room in close proximity to the nursing station following

complaints of inappropriate contact with Ms. Rivera.

28

The facility breached the standard of care by not providing

twenty-four hour skilled nursing care. The nursing staff was

not present in the halls or her room to prevent the sexual assault

ofMs. Rivera.

The facility breached the standard of care by not preventing

access to her room by unsupervised males. The records do not

indicate any checks on Ms. Rivera the night she was assaulted.

The facility breached the standard of care by not moving Ms.

Rivera to a room close to the nursing station where no

unsupervised males could enter her room.

(CR 20.) Dr. Lipson thoroughly and in specific terms describes what tasks the

standard of care requires and how Appellant failed to perform those tasks. Similar

statements were found to be sufficient in another case involving an assault on a

patient (this one committed by the staff):

Moreover, we conclude that [the expert] identified the care that was

expected but not rendered under the applicable standard of care. She

states that Spohn-Shoreline "[f]ailed to provide adequate supervision

to the CNA [DeJesus] and the RN [Njoh]," "[f]ailed to protect Ms.

Sanchez from sexual harassment and sexual abuse," and "[f]ailed to

provide safety to Ms. Sanchez in her immediate post operative [sic]

when the CNA lifted Ms. Sanchez up and began dancing with her."

She explains the specific tasks and responsibilities required of Spohn-

Shoreline and notes that it failed to perform as such.

Christus Spohn Health Sys. Corp. v. Sanchez, 299 S.W.3d 868, 877 (Tex. App.-

Corpus Christi 2009, pet. denied). Dr. Lipson's description of specific failures of

Appellant is tnore than sufficient to meet the good faith standard of Section 74.3 51.

Appellant argues that Dr. Lipson's report is conclusory as to whether sexual

assault occurred. First, Appellant misstates the law when insisting that Appellee

29

offer an expert optnton that Rivera was sexually assaulted. See UHS of

Timber/awn, Inc., 281 S.W.3d at 211-13 (discussed supra; "Rape is not a medical

condition. It is an assault. ... We decline to hold that [plaintiff] was required to

proffer an export report opinion that she was in fact raped.") Second, Appellant

ignores the well-documented medical records including the SANE nurse

examination, Ms. Mahan's statement, and Mrs. Rivera's medical history (which

prevents her from being able to consent to sexual activity). All of these facts are

those upon which Dr. Lipson may rely in forming his opinion. TEX. R. EVID. 703.

Dr. Lipson opined that by not having skilled nursing staff present in the halls

or in Mrs. Rivera's room, no staff was present to prevent the sexual assault. (CR

20.) Appellant failed to prevent access to her room by unsupervised males, failed

to check on Mrs. Rivera the night she was assaulted, and failed to move her close

to the nursing station where no unsupervised males could enter her room. Id. As a

result, "The harm caused [to] Rivera [was] significant. She was sexually

assaulted." Id. These statements, and others in Dr. Lipson's report, are sufficient

as to breach and causation. See, e.g., UHS ofTimberlawn, Inc. v. S.B. ex rei. A.B.,

281 S.W.3d 207, 213 (Tex. App.-Dallas 2009, pet. denied) (in a case involving

sexual assault by another patient, expert report met Section 74.351 requirements

where expert opined that standard of care required facility to house victim where

30

she could not be accessed by unsupervised males and had facility housed her in a

safe and appropriate manner, she would not have been victimized).

Finally, Appellant claims that Dr. Lipson failed to exclude ''other, innocuous

causes" for the vaginal bruising, bleeding, crying and confusion Mrs. Rivera

displayed. Contrary to Appellant's assertion, Dr. Lipson did consider other causes

for the injury and found no evidence to support them. 4 This case is thus

distinguishable from Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) and similar

cases cited by Appellants. In Jelinek, there was no causal nexus between the

defendant hospital's lapse in the treatment of antibiotics and the patient's suffering,

where the expert admitted there was no direct evidence that the patient had an

infection treatable by the omitted antibiotics, but the patient did have two other

infections that could account for all of her symptoms and for which the omitted

antibiotics would have been ineffective. Id. at 534-535. Here, in contrast, there are

no realistic alternative causes for Mrs. Rivera's sexual assault. Further, Dr. Lipson

specifically considered other causes and found the evidence did not support any

cause other than Appellant's negligence. (CR 21.)

4

He states: "I have considered other causes of this injury. I considered if the vaginal injuries

were self-inflicted. There is no evidence in Ms. Rivera's chart to indicate she engaged in either

sexual self-stimulation or self-abuse. I considered the injury may have been inflicted by

someone outside the facility or even a family member. There is no evidence to support this

approach. There is no record the family was anything other than suppotiive. The timeline in the

chart indicates she was [in] the facility at all relevant times save during transfer to the hospital.

There is no evidence anyone sexually assaulted her when she was being transferred to the

hospital to have her examined for injuries." (CR 21.)

31

CONCLUSION

As the trial court correctly determined, Appellant's boilerplate arguments

fall apart upon examination of the actual qualifications and report of Dr. Lipson.

The trial court's order denying Appellant's motion to dismiss should be affirmed

because Dr. Lipson is qualified and his expert report adequately sets forth the

standard of care, identifies how Appellant breached the standard, and explains how

the breach caused the injury Mrs. Rivera suffered. The report constitutes a good

faith effort to comply with Section 74.3 51 because it puts Appellant on notice of

the specific conduct complained of and provides the trial cou1i with a basis on

which to conclude Appellee's claim has merit. See TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(1); Palacios, 46 S.W.3d at 879. The trial court did not abuse its

discretion in denying Appellant's Motion to Dismiss.

PRAYER

For the foregoing reasons, Appellee respectfully requests that the Cou1i

affirm the trial court's denial of Appellant's Motion to Dismiss. In the alternative,

if the Cou1i finds the expert report to be deficient, Appellee prays that the Court

remand the case for consideration of a thirty-day extension to cure the deficiency.

See Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011) ("a thirty-day

extension to cure deficiencies in an expert repo1i may be granted if the report is

served by the statutory deadline, if it contains the opinion of an individual with

32

expertise that the claim has merit, and if the defendant's conduct is implicated.");

Leland v. Branda!, 257 S.W.3d 204, 207-208 (Tex. 2008) (court of appeals has

discretion to sua sponte remand the case for consideration of a thirty-day extension

to cure a report's deficiency).

Respectfully Submitted:

Isl Jack Modesett, III

JACI( MODESETT, III

State Bar No. 1424433 7

WALTER V. WILLIAMS

State Bar No. 21584800

MODESETTWILLIAMS, PLLC

515 Congress Ave., Suite 1650

Austin, Texas 78701

Telephone: (512) 472-6097

Facsimile: (512) 481-0130

ATTORNEYS FOR APPELLEE

CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of December 20 15, the foregoing Brief

of Appellee was electronically filed with the Clerk of Court using the Texas Online

E-file system, and a true and correct copy was served via the Court's e-filing

service, electronic mail and U. S. Regular Mail on the following counsel:

Emily J. Davenport

Janice Byington

Reed, Clayman, Meeker & Hargett, PLLC

5608 Parkcrest Drive, Suite 200

Austin, Texas 78731

edavenpo1i@rcmhlaw.com

jbyington@rcmhlaw.com

Isl Jack Modesett, III

Jack Modesett, III

33

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with Tex. R. App. P. 9.4(i)(2)(B) in

that it contains 7333 words, exclusive of the items identified in Tex. R. App. P.

9.4(i)(l ).

Is/ Jack Modesett, III

Jack Modesett, III

34

1/30/2015 3:11:20 PM

Velva L. Price

District Clerk

Travis County

CAUSE NO. D-1-GN-14-005169 D-1-GN-14-005169

MARTHA MAHAN, AS THE REPRE- § IN THE DISTRICT COURT OF

SENTATIVE OF THE ESTATE OF §

MARY RIVERA, §

§

v. § TRAVIS COUNTY, TEXAS

§

PM MANAGEMENT- AUSTIN NC, LLC §

d/b/a GRACY WOODS I NURSING HOME § 250TH JUDICIAL DISTRICT

PLAINTIFF'S CHAPTER 74 PRODUCTION OF EXPERT REPORT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Martha Mahan, as the Representative of the Estate of Mary Rivera, Plaintiff

in the above-entitled and numbered cause, and files this, Plaintiffs Production of Expert Reports

pursuant to Civil Practice & Remedies Code, Title 4, Liability in Tort, Section 74.351, and in

support thereof, would respectfully show unto the Court as follows:

I.

In cmnpliance with Civil Practice & Remedies Code, Title 4, Liability in Tort, Section

74.3 51, Plaintiffs hereby file the attached report of Loren Lipson, M.D. (attached hereto as Exhibit

A).

APPENDIX 1

11

II.

Plaintiffs hereby also provide opposing counsel with copies of Loren Lipson, M.D.'s

curriculum vitae (attached as Ex. 1 to Report), in co1npliance with Civil Practice & Re1nedies

Code, Title 4, Liability in Tort, Section 74.351.

Respectfully Submitted,

MODESETTWILLIAMS, PLLC

2202 Lake Austin Boulevard

Austin, Texas 78703

512.472.6097 - Telephone

512.481.0130- Telecopier . .

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J atk/Modesett, III

Tpx.{ls Bar No. 14244337

#Iter V. Williruns

Texas Bar No. 21584800

Plaintiff's Chapter 74 Production of Expert Report Page 2

APPENDIX 1

12

CERTIFICATE OF SERVICE

I hereby do certify that in compliance with the provisions of Rule 21a, a true and correct

copy of the above and foregoing has been served via Pro Docs electronic service on this 3oth day

of January, 2015 as follows:

Emily J. Davenport

K.emp Smith, LLP

816 Congress Avenue, Suite 1260

Austin, Texas 78701-2443

Emily.davenport@kempsmith. con1

Plaintiff's Chapter 74 Production of Expert Report Page 3

APPENDIX 1

13

EXHIBIT A

APPENDIX 1

14

DECLARATION OF LOREN G. LIPSON, M.D.

I, Loren G. Lipson, M.D., declare as follows:

I am a licensed physician in the State of California. I am Board-Certified in Internal

Medicine, as well as in Quality Assurance and Utilization Review. I have been board certified in

Geriatric Medicine.

My cuniculun1 vitae, attached hereto as Exhibit 1 accurately reflects my education, training

and experience as a Medical Doctor, Professor Emeritus of Medicine at the ICeclc School of

Medicine at the University of Southern California, Los Angeles, California, Affiliate Professor in

the Biomedical WWAMI Program, College of Arts and Sciences, and Affiliate Professor at the

College of Health and Social Welfare both at the University of Alaska Anchorage. I an1 the

fonner chief of the section of Geriatric Medicine and Associate Professor of Medicine,

Gerontology, Clinical Phan11acy, Medical Dentistry and Public Health, and Occupational Science

and Occupational Therapy, all at the University of Southern California where I have been on the

faculty for over 29 years.

In addition, I am a consultant to the Departtnent of Justice United States and the States of

California and New J\tfexico, and the Office of the Inspector General, U.S. Departlnent of Health

and Human Services in areas of geriatric care and elder abuse. I have served as a Consultant to

the Departments of Administration, Health and Social Services and Law, State of Alaska, in the

areas of geriatric medicine and long term care. I also have been the Physician Advisor to USC

University Hospital in areas of utilization1nanagement and quality assurance.

I have extensive personal experience in primary medical care as well as subspecialty

consultation and long-term care. I personally have provided care for patients in addition to my

acadetnic teaching, research and administrative responsibilities. My background is more fully

DECLARATION OF LOREN G. LIPSON, M.D. PAGE 1

APPENDIX 1

15

described in my curriculum vitae attached hereto as Exhibit A.

I an1 fatniliar with the proble1n of sexual assault in the nursing home setting. I am familiar

with the standard of care for preventing such assaults.

I continue to treat patients in the long tenn care setting and have done so for more than

thirty years. I am fatniliar with the standard of care for the treatlnent of patients like Mary Rivera

and familiar with the required training of employees providing care to residents like Mary Rivera.

I have reviewed the following records. They forn1ulate a basis for my opinions in this

1natter.

1. The statement ofthe daughter, Martha Mahan;

2. The Gracy Woods I records;

3. The SANE Nurse Report;

4. The SANE Nurse Statement

5. The St. David's Hospital Records

6. The guardianship records regarding Ms. Rivera; and

7. Texas Department of Aging and Disability Services' Reports.

The nursing home had a complaint of a sexual assault of a resident several months before

the assault of Ms. Rivera. This report should place the facility on a heightened alert for this

problem. The facility was cited by DADS for:

1. Failing to impletnent written policies that protect against this activity; and

2. Failing to rep011: the incident to law enforcement.

On June 20, 2013, Ms. Mary Rivera was placed under the guardianship of her daughter,

Martha Mahan, by Judge Guy Herman. Judge Herman detennined that Mary Rivera was a

"totally incapacitated person without capacity to care for herself.'' (Ex. 1)

DECLARATION OF LOREN G. LIPSON, M.D. PAGE2

APPENDIX 1

16

The findings of Judge Herman are consistent with the records from Gracy Woods I, (the

nursing home) where Ms. Rivera was a long tenn resident.

When Ms. Rivera adtnitted to the nursing home she carried a diagnosis of dementia. A

review of the nursing home chart indicates that Ms. Rivera's short- and long-te1n1 n1emory

declined over the tin1e of her residency. The chart indicated she frequently did not know the

location of her roon1, the season of the year or recognize staffn1embers. This is confirmed in the

appointment of her guardian when Judge Hern1an finds Ms. Rivera as "totally incapacitated" due

to mental as well as physical limitations.

The nm·sing home chart describes an individual who, while able to ambulate, clearly

required careful monitoring due to significant mentallin1itations. The nursing home chart further

indicates Ms. Rivera suffered frotn depression secondary to the diagnosis of dementia as well as

due to her adtnission to the nursing home, an admission she likely did not fully understand.

The daughter of Ms. Rivera describes in her statetnent alcohol parties that the nursing home

had on Friday aften1oons. (Ex. 2) She states that another male resident would inappropriately

touch or speak to Ms. Rivera. (Ex. 2) The daughter reported this concern to the management of

the nursing home. The nurses caring for Ms. Rivera were aware of this behavior. (Ex. 2)

Early on November 9, 2013, a Saturday 111orning, the daughter visited her mother at the

nursing home. She found her more confused than usual and crying. The daughter also folmd

broken Christmas ornaments on the floor. She took her n101n to the bathroom, and she appeared

to be in pain. Ms. Rivera urinated standing up, which was unusual. After she put her mom back

to bed, the daughter used the restroom herself. When she was discarding a paper towel she noted

there was a pile of bloody rags in the trash.

DECLARATION OF LOREN G. LIPSON, M.D. PAGE3

APPENDIX 1

17

Concerned that her n1other had fallen, she took the rags to the charge nurse, Wendy, who

did ahead-to-toe skin examination. The nursing hmne records confinn that no open wounds were

found. The daughter ultimately took her mother to the hospital where they found bruising to her

back. No vaginal exan1 was done at that thne.

The daughter reports Ms. Rivera continued to act like she was afraid. She noted bleeding

fro1n her mother's vagina. The daughter began to suspect sexual assault. The police were

notified.

Ms. Rivera was taken to St. David's Hospital. An examination was done by a Sexual

Assault Nurse Examiner (SANE Nurse). The SANE nurse told Ms. Rivera that her n1other had

suffered vaginal trauma. The SANE nurse exam specifically found tramna to the posterior

fourchette/fossa navicularis as well as trauma to the periurethral area of the vagina. (Ex. 3) In

other words, she found bruising to both the front of the vagina as well as the posterior of the vaginal

wall. (Ex. 3) The statetnent of the SANE nurse indicates the findings "definitively indicate

penetration of the fetnale sexual organ." (Ex. 4) As referenced above, Ms. Rivera was

incotnpetent. In other words, she was sexually assaulted as she is unable to give consent to sexual

contact.

Sexual assault in the nursing home environn1ent is a very serious problem. In the four

years leading up to this assault, nearly four htmdred sexual assaults were reported in Texas nursing

homes. At high risk are seniors such as Ms. Rivera who suffer from dementia. They are poor

historians due to their illness and many suffer fi·on1 iinpaired cotnmunication sldlls. As such they

are extre1nely vulnerable.

The good nevvs is that, if the ntu·sing home takes a few simple steps, the assaults can be

prevented. Facilities such as this nursing home are 24 hout skilled nursing facilities. This means

DECLARATION OF LOREN G. LIPSON, M.D. PAGE4

APPENDIX 1

18

they are required by law to have sldlled nursing staff as well as certified nurses' aides on duty and

providing care to the residents twenty-four hours a day, seven days a week, three hundred and

sixty five days a year. The nursing hon1e in question has one hundred and eighteen beds in the

entire facility. These types of assaults, according to most reports in the literature, occur at night.

The literature indicates that facilities with a history of abuse arid noncompliance are more

likely to have future incidents of abuse. This nursing facility has a history of reported abuse and

sexual abuse and was cited by the state for several indications of neglect leading up to the assault

of Ms. Rivera. The ntu·sing home management and owners are aware of this history of abuse and

are obligated to take steps to prevent future abuse. Everyone in the nursing home business is

aware of the problen1 of sexual assault. It is well discussed in the literature and the press. Given

the history of problems in the facility and the complaints of the daughter, it is foreseeable assaults

like this would occur without the proper precautions.

This nursing home owes a duty of protection to patients suffering frotn mental incapacity

due to decreased cognitive abilities. This duty includes monitoring the physical and mental

conditions of the patients and meeting the fundamental care needs of the residents. Nursing

homes are required to assess each resident's needs and capabilities. Sotne residents, like Ms.

Rivera, require enhanced supervision and additional staff to protect them from others. The

nursing home must take reasonable precautions to protect Ms. Rivera from the foreseeable

consequences of her impairment including sexual assault. This is particularly true when there is

a previously reported assault and the patient's family has voiced concerns ·of inappropriate

behavior towards their tnother.

DECLARATION OF LOREN G. LIPSON, M.D. PAGES

APPENDIX 1

19

STANDARDS OF CARE

1. The standard of care requires the nursing hmne provide twenty-four hour a day

skilled nursing care. The practical result of this requirement is that the staff must

be n1oving through the halls and the rooms of the residents all night long. There

should never be a time when a staff member is not in the next room or moving

through the halls next to a resident's room.

2. The standard of care requires that following the repoti of an assault at a nursing

facility that the facility control unsupervised access to the rooms of residents at tisk.

The standard of care requires the facility take note of the families' concerns of

inappropriate behavior and eliminate access to the patient by unsupervised n1ales.

Residents at risk include vv-omen with significant dementia such as Ms. Rivera. In

light of the families expressed concern of inappropriate advances to Ms. Rivera, the

standard requires heightened scrutiny to include regular walks through the entire

hall at intervals not to exceed tentninutes to prevent access to her room by males.

The standard of care requires the nursing staff document the fact that it is

perfotming the regular checks in the patients' charts. In addition, the standard of

care requires Ms. Rivera be moved to a room in close proximity to the ntu·sing

station following complaints of inappropriate contact with Ms. Rivera.

BREACII OF STANDARD OF CARE

1. The facility breached the standard of care by not providing twenty-four hour sldlled

nursing care. The nursing staff was not present in the halls or her room to prevent

the sexual assault of Ms. Rivera.

2. The facility breached the standard of care by not preventing access to her room by

unsupervised n1ales. The records do not indicate any checks on Ms. Rivera the

night she was assaulted. The facility breached the standard of care by not moving

Ms. Rivera to a room close to the nursing station where no unsupervised males

could enter her room.

HARM

The harm caused Ms. Rivera is significant. She \Vas sexually assaulted. The injuries to

her vagina are well documented in the SANE nurse report and above. The daughter reports she

was tearful and afraid. · This is a cotntnon response in sexual assault victims. The daughter

reports this behavior of fear continued even after Ms. Rivera was removed fron1 the facility. The

fact she suffered from dementia does not lessen the harmfuln1ental effects of sexual assault. Even

DECLARATION OF LOREN G. LIPSON, M.D. PAGE6

APPENDIX 1

20

an anitnal can remen1ber when it has been abused. In tnany ways Ms. Rivera was like a small

child -confused and afraid as a result of this sexual assault. The history of problems together

with the decision to ignore the fatnilies' cotnplaints and eliminate unsupervised males from Ms.

Rivera's rootn indicates a conscious disregard for the well-being of Ms. Rivera by the facility's

tnanagement.

I have considered other causes of this injury. I considered if the vaginal injuries were self-

inflicted. There is no evidence in Ms. Rivera's chart to indicate she engaged in either sexual self-

stimulation or self-abuse. I considered the injury may have been inflicted by son1eone outside the

facility or even a fatnily n1ember. There is no evidence to support this approach. There is no

record the family was anything other than supportive. The titneline in the chart indicates she was

the facility at all relevant tin1es save during transfer to the hospital. There is no evidence anyone

sexually assaulted her when she was being transferred to the hospital to have her exatnined for

injuries.

DECLARATION OF LOREN G. LIPSON, M.D. PAGE7

APPENDIX 1

21

I declare tmder the penalty of pe1jury under the laws of the State of California that the

foregoing is true and correct

Executed this P,~ay of~ , 2015.

Cf~,

DB:CtARA.TlON OF LO:REN G. LlPSONJ I\1.D. PAGE8

APPENDIX 1

22

EXHIBIT A

APPENDIX 1

23

CDAAIC'OL'VM VITAE

August 1, 2009

A. P~l'HOlUlllnfol'matio:n.

L Nmtie; Loren G. Lipson) M.D.

2. 11tles! Professol' Emeritns ofMedichte at the Keck School

of Medicine of the University of Southern

Califonrlap Los Angeles> Califonrla; and AffiJiat6

Professor~ Biomedical WWAMI Ptogram> College

of A:tts and Sciences~ and Affiliate Professor~

College of Health and Social Welfar1;1 at the

University of Alaska Anchorage.

3. MaiH11g Address! P.O, BoxJ

South Pasadena, California 91 031

4. Business Telephone: 626-403w0169

5. Fax: 626-403.-0165

6. Paget! 800 ..20~-2380 (Numetio Only)

B. Educafio.tt

1. High Sobool- :Sirminghmn Bigh School~ Van Nuys) Califor.hla.

Graduated, June 1961.

2~ University- U.C.L.A.~ B.S. in Chemistrywithami:no1•inMath

and En~lish.

(Sununa Cmn. Laude)1 June 1965,

3. Medical School - The J'olms llopldns University Schqol of

Medicine> Baltimore~ 'Maryland: M.D., June 1969

4, Internship ..... The Johns Hopkins I-Iospital1 Osler Medical Service~

1969-1970.

5. Residency .. The Joh1.1s Hopldns Hospital~ Osle1· Medical Servlce~

1970-1971 I

I

I

-··.-----···-······-··-·------ --- ···----"· .,. --··--·--:--------.-:::-7-:-.------;-:--,-~,-.,·-----~-~----·-;·--·--· ...... ---·-··-·· ·---.. ---·~--·--....- ..,....................... -·------·--'·--··~----------··------- ............

I

! ......... \ . -

ii j

l

iI

'i d • . . "'"' '1l •

I

APPENDIX 1

24

I I

6, Fellowships:

a. Tite Johns Hopkins University School of Medicine,

Balthnote:l Marylnnd: Clinical Fellow in Medicine~ 1969~

1971

· b. The Natiol1al ftlstitutes of Health., Beth~sd~ Marylaud!

Research Associate - l?rote:in Chemistty; Physical

Biochemistry~ Moleculat Biology ..... Labot·atory of

~Chemical Biology. Nationat Institute of Atthtitis~

Metaoolio and Digesti~e Diseases (NIAMDD), 1971-1973,

o. Massaclmsetts Genetal Hospital~ Bostoni Massachusetts:

Clinical and Research Fellow 1n Medicine (Endocrlnology

and Metabolism)~ 1973.-1976

d, Harvard Medical School, Boston, h1assaoltusettsf Clinitml

.and Research Fellow in Medicine (Endoorinology and

Metabolfsin)>l973 .. 197S. ·

e~ Ha:rvru:d Medical School, Boston, Mass~ohusetts: Jolm A.

H'ru:tfht•d Seufol' Scholar in G0ri~rtdc Medicine_, D:lvision of

Aging,1984 ...1985 -

f. Beth Israel .Hospital~ Boston, Massachtlsetts! Clinieal

Fellow in Medicine (Gerontology)~ 1984...1985

g. Brigham - Women~s Hospital, Boston> Massachusetts~

Clinical Fellow in Medlcine (Get:ontology)1 19&4.. 1985 .

h. Hebrew Rehabilitation Center for the Aged> Boston,

Mass'achusetts! Cih1ical Fellow in Gerlatrio Medicine~

1984 ..1985.

i Institute of Advanced Studies on Gerontology; Ethel Pemy

Andrus Gerontology Cente1; ·usc~ Los Angeles, Califot.nla!

Fellow in In.stitute, Area-Drugs .in the Elderly; 1985-19&7

j. Geriatric Research Institute~ Ethel Percy Andrus Gerontology

Center> USC1 Los Angeles; California: Senior ~esearch

Associate; 1985..1989.

7. Honors and. Award

I

-~:-_-----;-.---~·~·#·~-~---~ .. ~~----.~-----··;--,-.. ---- .---:-.-=.-·.:.:·:;=·:;-;~·-:::.-:.::::.·.:;·.:.--:;·=..:.:.·.:-..=.:.:.:-•• :· :~:: :_-.;··- ·--2;---~ .. ·-· ........--· ..... ·:-~------------------~-----~··--,..---,..,-

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----··••----·-i--- ...

I

va , "\ & •

.' II

APPENDIX 1

25__ 1

1965 Phi Beta Kappa; Recipient of' Merck Award

in Chemistry;

Outstanding U~tdergt•aduate in Chemtstty

Award of Phi Llllllbda Upsilo11; Medal for

Soholarship o-£ the Am~dQan Institute of

Chemists; The Ramsey :Ptize irt Physical

Chemistry; Sigma XI-

All atU.C.L.A.

1968-1969 Hemy Strong Denison Scholarship for

Research in Medicine1 The Johns Hopkins

Universlty Sohool of' Medicine~

1975 -1977 National Reseru:oh Sel'Vioe Award in

Diabetes (NIAMDD)} Natioru:tllnstituteu of

Health.

1975-1978 Daland ·Fellowship in Clinical Medicine,

American Phllosophloal Society.

1977 _: '1978 CHnioal Investiga.to1' Awro.'d iu Diabetes,

NIAMDD> National Institutes ofBealth.

1984.-.1985 John. A. Hartfoi'd Senlot Soholat• Award in

Gel'latdo Medicine, Division of Aging,

Hanrard'Medical School.

1989 The Genesis Awru:d, Fo:t.' Innovative Health

Care DeHve1y, Los Artgeles Bushless

Journal.

1989 Ptofessional. Leadership Program Award,

Volunteer Cento:r of Los Artgelos.

1999 One of Top 20 :Physicians in the Ch-eater Los

Angeles Ate a (and only Gerlafliclan

natned)ll Los Atlgeles Business Jm:unal.

2000 One of Top 1?rlmmy--Caxe Physioiaus in th~

U.S.~Tow.n an.d Country Magazine.

2002 One of Top Ten Physicians in Los Angetes1

Amet1car-On-Line.

8. Licensure: California..

·-:::-----· ---~···~---------------··---···---···-···----·-·- ·-·-- -- --.

3

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' .

APPENDIX 1

9. Boards! A1nedo(tn Board of I:ntel'nal Medicine> 1974.

Atnedcan Boatd of Quality Assurance rutd Utilization Review

Physicians, 1995

Certificate of Expertise itt Geriatric Medicinel American Board of

Intel'nal Medicine, 1996

C. Pl·ofesstonal Background

1. Academic Appointments

a~ Tlw Jolms Hopkins University School of Medicine~ Baltlmore7

Maryland; Clinical Fellow in Medioine~ 1969"197L

b. Massachusetts General Hospital7 Boston7 Massachusetts; Cltntoa1

and Reaeatoh Fellow in Medicine (Endocrinology and

Metabolism)> 1973 ..1976.

c. Hawatd Medioal School~ J3oston, Massachusetts; Clinioa1 and

Research Fellow in Medicitl.e (Endocrinology and MetaboliStn),

1973.. 1975.

d. Hlu.\Tatd Medical School) Bosto~ Massachusetts; fustructQr ln

M¢dioine (Diabetes)~ 1975~1978-.

e. Mammch\lseii:s General Hospital> Boston1 Massachusetts-; Clitllcal

Assistant in Medicine (Diabetes Unit):~ 1976~1978..

University of Southern California School of Medicine; Los

Angeles~ Califonda; Assistant Pxofessor of Medicine (Diabet(7s

Division); 1978-1981.

gt University of Southern Cruiforoia School of Medicine~ Los

Angelesj Califo:mla; Assistant Professor of Medicine~ with tenure

(Division of Diabetes and Clinical Nutrition)~ 1981 - Jtmtiaty

1984.

h. Los Angeles County/Unive:rsity of So'U-thetn Califomia Medical

Centex) Los Angeloo., California~ Staff Physician in Medicine

(Diabetes Service), 1978 -.January 1984

i. University of Southern California School of lVIediclne;p :Los

Angeles~ Califotuia; Associate Professor of Medicine (Division of

Geriatric Medicine), January 1984-Septelnber 2006.

··"'"'·~~~:·-::::~.::o c·c~=::c:."'"""'-~O:.-.:-:::;,..,.~·-;_:·:,·:-c. ;.-,-,-··.;·,-:;o·~c-···· ---~·-;--~·-·:~ ·---···c-···-···..··-········ ........,.....!. . -.,........ _--·-- _·- -----~····--· -.· ·------ ·~ .

·."· ..

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~~ t1 • ., ' . "\ J •

~ I

APPENDIX 1

27

j. Unive~·sity of Southe111 California S¢l:Cool of Medicine~ Los

Angeles? California; Chie~ Dlvlsion of Gerlatdo Medicine· jn the

DepartJ;ne11t ofMedlcinej January 19&4- 2005.

k. University of Southern Califotnhh Los Angeles~ Califot:nia~

Associate Professot of' Gerontology, L~onard Davis School of

Gerontology~ Ethel Percy An.drus Gerontology Center~ Januaty

1984 ,_ Septetnber 2006.

1. University of Southern CalifomiaJ Los Angeles,· California;

Assooiate Professor cf Clinical Pharmacy, U.S.C7 Sohool of

Pharmacy~ October 1989 .... September 2006~

m. Los Angeles County/University of Southe:n1 California Medical

Center~ Los Angeles, California; Staff Physloia11 in Medioinej

(Oeriatdo Medicine), 1984..2004.

u, Sabbatioal Leave> Harvard Medical School~ Boston,

Massachusetts~ Dlvisio11 of Agingt John A. Hartfol'd Seniol'

Scholar in Gerlatdc Medicine-~ 19 84- 1985.

o. B:dghant & Women~s Hospital, Boston,. Massaohusetts; Clinioal

Fellow in Medioine (Oer!atrio Medicine)~ 1984 ..1985.

p 4 :Beth Israel I-iospital~ Boston~ Massachusetts; Clinical Fel~ow in

Medicine (Ge:dai1'lc Ivfedioine), 1984 .... 1935

q. University of Southern California, Los Angeles~ California; Senior

Research Associate; Getontology Research Institute; Ethel Percy

Andrus Gerontology Cente1~ 1985 .-.. 1989.

r. University of Southern. California., Los Angeles~ California; Fellow

Institute of Advance Study, Ethel Percy Andtus Gerontology

Center, 19B5 . . . 1987.

$. University of Southern California University Hospital, Los

A11geles~ California;

Chief of Geriatric Medicine~ 1991.. 2005

University of Southern California . . . School of DentistJ:y -

Associate Professor of Medical Dentistry and Public HealthJ 1994

i

-September 2006.

I

u. Unlversity of Sottthem California~ School of Independent Health

_Professionals - Associate Professor o:f Oocupa.!ional Science and

Oooupational Therapy~ 1998~ S~ptember 2006.

I

l

I

I

I

I

I

J

·-·--· ----·----,---,--··-·~-------·- --- -····-·····-·----··-·-----:-- ··--· ··--·{:··

i

.. D ' '\,! •

j

'i J .• ~~-.

. . J

APPENDIX 1

v. University of Alnska, Anchorage_. Adju11ct Aasooiat~ Professor of

Human Biology) 2001- September 2006.

w. · UniversitJ of Alaska Southeast, Sitka .... Adj\.1not Associate

Professor of Human Studies, 200~ .. 2006.

x, University of Alaska, At~ohorage) Affiliate Professor, College of

Health and Social Welfare, 2006 -:Present.

y. Unive1'sity of Ala~ka. Anchorage~ Afftllate Professm.; Biomedioal

WWAMr Program, College of Axts and Sciences~ 2006- Present.

Univexsity of Alaska; A.ltchol'age~ Faculty Consultant in Geriat.dcs,

• i Alaska Family Medictil Residency! September 2006- Present.

aa, Un1vetsity of Southern California, Keel< School of Medicine~

:Professor Emeli'tt1s ofMediohte~ September 2006 - Present.

2A. Teaching Responsibilities (University ofSouthern Califotnia) ·

a. Attenditl.g· Staff :Physician LAC/USC Medical Cent~t· ott the Geue~al

Medical Service- teaching and supervising patient oru:e~ both inpatient

and ouipatient to house staff and students 1985 - 2004.

b. Attending Staff Physician. at USC UniversitY Hospital in Geriatric

Medicine for lv1edic~L Ho1.1se Staff and students. 1991- i005.

a. Xn charge of the Fellowship Program - Geriatric Medicine. 1985 -

2004.

.

I d. Development at1d improvement of Gerlatdc Medical Cun·loulum in the

Medical School- UniV'et'sity of Southern CaU£omia. 1985 -2004

e. Developn1ent of Oedatrlc Medical Core Cm:d:oulum for

House Staff~ LAC/USC Medical Center, 1985 ~ 2004

fu~ Medical

• I,

f. Member of Stee1·1ng Committee~ Key Faculty and Study Site

Cootditu~tor ~ Pacific Geriatric Education Center at the University of

Southe1n Califottda(DHHS), 1984-1993.

. .

g. Atton.ding Physician Year HI Medicine Rotation) 1992.

1L Dit.'eotot and lecturer in various cou.rses at the Eth£;)1 Percy Andrus

Gerontology Center including Gerontology 599 - Geriatric Health

Issues~

'1 j I

.. 1' . , a•

APPENDIX 1

29

i. Director- C.reriatrics Update- A Board Review Course.

j. Director__. ~istoty of Medicine in the Healtlt Sciences Program~ 1994

~200L

2l3. ·Teaching ResponsibiHttes (University of Alaska)

a. Director.-.. Care oftlte Elderly Cortferenc~,

University of AlaskaJ So\lthefiSt- Sitka>

1994-Ptesent

b. lustruoto:r .- Promoting Best .Practi<3es in Aging, University of

Alaska, Anchorage>

2006- Present

c, Co··Director- University of Washington Med(oal Soltool 596 ~

Human Biology - Course for Alaskan Students . - Muitl..

Disciplinary and Ethnicity in Gerontology and Geriatrics,

(University of Alaska~ Anchotage .. Sprirtg and Fail$ 2009 and then

yeady).

d. Co~Dil'ector in Geriatric Education to Alaskan Medio~U St1Jdents iu.

the University of Washington Medical School WW AMI Progt·arn>

University of Alaska, Anchorage~ 2006 - Prese11t

e. Fa-oulty consulmnt in Oerlatdcs to Residents of the Alaska :Fan:rl.ly

Medicine Residency Program, 2006 . . ., Ptesent.

3. Administrative Responsibilities

a. Chief of the Division of Geriatric Med~oine~ Departme11t of Medicine,

Unive:tsity of Southern Califbrma. School of M~clicine. In charge of

ataff arid fellow recruitment and trahrlng; divisional budg~t; gtatlt

procu;rement; program. development and S\lpervision of researoh a11d

olllrlcal activity. 1984 . . . 2005~

b.. Study Site Coordinato:r and. Key Faculty .of .the Pacific Gedatrlc

Education Center, Dtrl.versity of Southern California Sohool of

Mt;Jdicine1 1984--1993. ·

c. Senlo:t Staff Physician in charge of Ger1atr1o P.rogtmns at Los Ang~les

County/O"niverslty of Southern Califo1nia Medical Center~ 1985 -

20044

d. Chief o:f Geri~ttic Medicine at the USC University Hospital> 1991 -

2004;

- -- --~----· ._ __ ·--· -

.. ··----·-- ,.._,~ __ ...__, __ ,

APPENDIX 1

30

e. Faculty liaison betwee11 Geriatric Medicine and Univel'sity affiliated

hospitals and long term care fuollltles. Director of Oedatrio Medicine

Private Praotice Platt. 1984 ..... 2004

f, Dlrectox of the USC Ambulato1y Health Center sites at the Japanese

Retire:ment Homes and Angelus Plaza., 1985- 1993.

g. Dft•ectot of the Division of Gedatdo Medicine>s Program at the V.A.

OutpatielJ.t Clinic in downtown Los Angeles, 1986- 2001.

h. Director of the DSC Teaching Nm·sing Hon1e Program at Hollenbeck

:Home ~nd. Atherton Ba})tlst Home, 1999 -2005.

i: Director of the Senior· Cancer Center at Nords Comprehensive Cancer

Ce:nte1· and J.iospitalt 1999 - 200 1.

j. Ditector of the Senior Cru:e Program.~ USC Care and. USC )?hysicians.

199& - 2002,. .

k Co.-Director- Adult :Protective Terun - Gerlatdo Medioine Program-

LAC/USC Medical Center, 2000 ..... 2004.

L Director - Cate of the Eldedy Conference~ University of Alaska

Southeast~ Sitka, 1994 - Present.

m. Co~Pxrecto1.· ,__. Gerlatrlo Eduo~t.ion for Alaskan Medical Stndents in the

WWAMr Program;. University of Alaska1 Anchorage. 2006 ~ :r~·esen.t,

n. Medical Directol.' .-Alaska Gel'intdo Eduoatton Center~ Univet·sity of

Alaska1 Anchorage. 2005 - Pxesent,

o. Medical Dh·eotot . . . . National Resource Centet for Studies in l'lative

Amerloan~ Alaskan, and Hawaiia11 Elders, Uni'\lersity of Alask~

Attchorage, 2006 .. Ptesent

4. Senrice

A. University Service

a. Medical Executive Cotunrlttee, Deparhnent ofMedloine~ USC 1985-

2003.

b. Utilizatioll Management Comtnlttee; USC Universit-y Hospital, 1991--

1999~ 2003 ..... Present, .Chairman o:tthis Co;nunlttee, 1994---1999.

"til. 11 4 '

APPENDIX 1

31!

o. Phru:maoy and Therapeutics Committee, LAC/USC Medical Center$

2001-2004.

d. Pharmacy attd Therapeutics C(ntJ.mittee~ USC University Hospital,

1991 - 2005:~ Chairman, 1996- 2000.

e~ Pati~ut Ca1.·e Evaluation Committee~ USC University Hospiial, 1994 -

1999,

f. Le6ture;r in School of Pharmacy:. University of Southern California>

1985 ..2004.

g~ Continuing Medical Post. .Graduate Education Lectures at outlying

hospitals~

1979- 20Ct4.

h. Core Cwt1cultlrn Conunittee forth~ New Medical Sol1ool Cu1·riculu:ml

USC School o:fMedioine~ 1998 ..... 2002 ·

L County Operations Committee~ Department of Medicint)> lAC/USC

Medical Center, 1997 . . . 2000

j. Development CotnrrtitteeJ< Depamnent of Medicine, LAC/USC

Medical Center, 1997-2000,

k. Senior Health Care Progrru.n, USC Cate2 (chair/member);~ USC 199~ .....

2002.

L Executive Committee~ USC Norris Comprehensive Cancer Center and

Hospital._ Senior Cancer Catt;} Center, 1998 ... 200l.

m. Co..Director - Adult l?tot~ctive To<UU ..... Ge1iatrio Medicine Program ~

LAC/OSC Medical Center~ 2000 .... 2004t

l3. Public Service

a. Consultant in Geriatric Medicine and Long Term Ca:re1 State of

Alaska~ Depru.:tments of Aihninistta.tlon Law, H&;}alth and Sooial Se:rvice~,

1991 ..·2004

b. Consultant in Gerontology and Geriatric Medi.oine, UniveJ:sit.y of

.Alaska, both at the Anchorage and Sitka campuses~ 1994-present.

c. Board of Directors~ California AssociatloJJ. of Medical Directol'Si' 1992-

. 1999.

~... .. .

·---..--··-····--·-----:-:· ·-· .. ---·:- ----·-----:-----'--9----.-- --······· ··---:-~:--~";';' .. ::=;;'·::-.;-;~::-::-·:·:.- :· -~·-;··-~--------.-·- ·-·· ..••... ,....•..... ···4··-~···4 4 .. 4--•· ... ·4---··--~-

.. ., 4 .. ,, 4 • '\if • •\ A •

APPENDIX 1

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