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Houston court of appeals: Hospice providers owed a duty to non-patient homeowners

Hospice company and physician had duty to warn and protect non-patient homeowners from foreseeable risks

The Houston Court of Appeals recently issued an opinion that recognizes at least one situation where a healthcare provider may owe a duty to a non-patient. The case is styled Mason v. Amed-Health, Inc. d/b/a A*Med Community Hospice and Folasade Ojo, M.D., No. 01-18-00045-CV, the First Court of Appeals, and the opinion was issued on August 1, 2019.

The facts that led to this lawsuit are interesting.

Charles Vance, a patient, was receiving hospice care at the home of his friends, the Masons. A fire started when Vance lit a cigar while using oxygen prescribed by the medical director of a hospice company and provided by the hospice company’s staff. The fire injured Vance and the Masons and completely destroyed their house.

Motion for summary judgment

As a Houston, Texas medical malpractice attorney, I wasn’t the least bit surprised to find that the hospice doctor and company filed a motion for summary judgment to have the lawsuit tossed. Among other bases for the motion, the defendants claimed that a negligence lawsuit was inappropriate because they only owed a duty to the patient, not the non-patient homeowners.

Summary judgment is a procedure that a party can use to ask court to rule in its favor before trial because there is no fact issue for the jury to decide, and the court can decide as a matter of law. Defeating a motion for summary judgment only requires the opposing party to produce more than a scintilla of evidence that would create a fact issue.

What the hospice providers did and didn’t do

A field nurse for the hospice provider performed an initial assessment of Vance and noted that he was a smoker. The nurse counseled him both verbally and in writing about the dangers of smoking while using oxygen.

Both the nurse and hospice medical director acknowledged that they knew the dangers of smoking while on oxygen. In fact, the medical director admitted that at least one former patient had died in a fire caused by smoking while taking oxygen. These facts were significant to the court’s opinion because they show that the potential harm was foreseeable.

Vance’s friend wasn’t assisting with providing any care but asked the hospice nurse whether it was appropriate for Vance to be smoking and drinking while on the medications. The nurse said it was fine to let Vance do so, because he was going to die soon.

Despite the warnings from the hospice nurse not to smoke near the oxygen canister, one night, Vance lit a cigar and it caused the fire.

The lawsuit and decision

Both the patient and homeowners sued the hospice company and physician for medical malpractice and gross negligence. They alleged that the defendants were negligent by prescribing and administering multiple mind-altering medicines to a known smoker without a nicotine substitute.

The First Court of Appeals found that the defendants were not entitled to summary judgment on the homeowners’ negligence and gross negligence claims.

In its well-reasoned opinion, the court stated: “Here, we first observe that, while [the hospice provider] correctly argues that no provider-patient relationship existed between the [homeowners] and [the hospice provider], that is not the sole basis for imposing a legal duty. . . . [The homeowners] were not third parties in the population at large, but instead, had opened their home to allow [the patient] to receive home hospice care from [the hospice providers].”

The court concluded that the hospice company and medical director had a duty to warn the homeowners regarding the danger posed by treating the patient with oxygen in their home and take reasonable measures to lessen the risks to other people residing in the home and caring for the patient.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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