Negligence/Gross Negligence: The defendant, Texas Health Enterprises, Inc., (THE), is an entity wholly owned by Peter “Woody” Kern, which owns and operates 10 nursing homes throughout the state of Texas. Defendant HEA Management Group, Inc., also owned by Kern, is a management company which is responsible for the policies, procedures and management of the various nursing homes. Plaintiff Fough was the original executrix of the estate of Dorothy Cooper, later replaced by Elma Holder.
In 1991, Johnny Gordon, a six foot, 200 pound man with a criminal history and an outstanding health warrant for gonorrhea, applied to be a nurse’s aide at a THE facility New Horizons, in Odessa. Under state law, the facility was required to request a criminal history, which it did, mistakenly classifying him as a female. Searched in state records as a female, the name came up clear of any record. He was hired. Three weeks later he was fired by Assistant Director of Nurses, Carol Medlock, for slapping an 87yearold female patient repeatedly.
After some period of time in Kansas, Gordon returned to Texas and in October, 1992, applied at another THE facility, Terrace West in Midland. The required criminal check was done, but from a handwritten form with what looked to be the name of Johnny Cordon. Searched as such in state records, the name came up clear of any record. He was hired. Instead of enrolling him in the required 80 hour nurse’s aide training course, he was placed immediately in patient contact, despite a state law requiring that any nurse’s aide not receiving certification within 120 days must be removed from patient contact.
Finally, in June, 1993, he was directed to attend the course at yet another sister facility, Terrace Gardens in Midland. (Terrace West had been disqualified and prohibited by the State from giving the course due to its record of bad practices.) As part of the course curriculum, the facility was required to do a criminal history check. They failed to do so. Assistant Director of Nurses Jolene Swanner testified that they routinely do not do the required check. During the course, a substitute trainer was needed and the chosen substitute was none other than Assistant Director of Nurses Carol Medlock who had previously fired him for patient abuse. She recognized Gordon and reported him to Assistant Director of Nurses, Sylvia Casas. Nothing was done.
Shortly after his certification, on July 20, 1993, Gordon was assigned to be on the shower team to give patients showers. Policy required a female to be present during all female patient showers. Policy was ignored.
Evidence from medical records indicates that Gordon had been sporadically sexually abusing a 65 year old stroke victim by the name of Dorothy Cooper who was significantly paralyzed as a result of the stroke and had threatened her with severe harm if she reported the sexual abuse. She was one of the patients Gordon was assigned to shower. While in the shower stall, Gordon brutally raped her twice with a shower head, then returned her to her bed. There he relieved himself sexually, spilling his fluids across her body.
It was this substance which alerted subsequent nurse’s aides. They reported it to the charge nurse who dismissed it as the patient’s own discharges. One of the aides, however, insistently reported the matter to the director and demanded that the police be called.
Gordon was fired, arrested, convicted and is serving a five year sentence. Ms. Cooper was never given any postrape therapy.
The discharged Corporate Director for Personnel for HEA (later rehired) testified in deposition that since 1989 he had alerted management to the need to prevent hires by one THE facility of employees discharged from another. Although they had such a system in place to alert them of applicants with a history of worker’s compensation claims, the company had refused to institute a similar procedure to prevent rehires of abusive employees on the grounds of budget constraints.
In a bifurcated trial, the jury found defendant Texas Health Enterprises, Inc. to have been grossly negligent and defendant HEA Management Group, Inc. to have been negligent.