Hospital Liable in Death of Man Given Ativan Despite a Charted Allergy, Damages Capped on Appeal

Jacob Perea was a 78-year-old widower in Lubbock, Texas, with four sons. He had heart disease, respiratory problems and diabetes, but until a fall in November 2004 he spent his days mowing and keeping up 17 acres of land his sons owned. The fall left him with a slight fracture in his neck, and he was treated at Covenant Medical Center.

His records there carried a warning. After sedation for an MRI, Covenant staff noted a bad reaction to Ativan, and his discharge summary listed him as allergic to lorazepam (the drug's generic name) and to morphine. He was discharged in stable condition, neurologically intact, to Southwest Regional Specialty Hospital, a skilled nursing facility run by THI of Texas at Lubbock I, LLC. The admitting nurse there recorded the Ativan allergy on his assessment, put an allergy sticker on his chart and an allergy bracelet on his wrist.

On December 18, 2004, at 4:00 p.m., he was given 2 mg of Ativan. At 1:30 a.m. on December 19, when he was agitated, a nurse gave him a second 2 mg dose. At 7:15 a.m. he was found with no vital signs. He was revived, intubated and taken back to Covenant with respiratory failure. His condition did not improve over the following week, and he died after his family decided to take him off the ventilator.

The family sued. Amy K. Witherite of Eberstein & Witherite, the firm now known as Witherite Law Group, represented the estate and the four sons. The case turned on two questions: whether the drug caused his death, and what the hospital knew about the charge nurse alleged to have written the unauthorized Ativan order. The family's expert testified that the second dose over-sedated him, so that his breathing grew shallower until his heart failed. The hospital's expert said he died of a heart attack. On hiring, the nurse testified that he had been placed on probation by the Colorado nursing board in 1997 for giving Ativan to a patient without a physician's order, and that the hospital's nursing director knew of it when she recruited him in 2002.

In 2008 a jury in the 72nd District Court of Lubbock County found the hospital 90 percent and a pharmacy staffing company 10 percent responsible, and found the hospital grossly negligent. It awarded the estate $159,718.40 for pain and mental anguish, medical bills and funeral costs, $100,000 to each son, and $1,250,000 in exemplary damages, about $1.8 million in all. The trial court cut the medical expense award to the amount actually paid and entered judgment of $1,696,895.50 against the hospital.

The hospital appealed. On July 28, 2010, the Seventh Court of Appeals in Amarillo upheld the findings of negligence, causation, negligent hiring and gross negligence. But it held that the estate and the sons count as a single claimant under Texas law, that noneconomic damages against a health care institution were capped at $250,000, and that exemplary damages were capped at $285,053.94. It reversed the judgment and sent the case back for a new one that applied those caps, credits and interest. One justice agreed with most of the ruling but would have rejected the negligent hiring theory. The Texas Supreme Court denied the hospital's petition for review in April 2011.