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N.N. v. Institute for Rehabilitation and Research7/21/2005
On August 30, 1997, A.B, a patient who was undergoing rehabilitation therapy for a brain injury at The Institute for Rehabilitation and Research (TIRR), appellee, stated that she had been sexually assaulted by another brain-injured TIRR patient. As A.B.'s next friend, appellant, N.N., her mother, sued TIRR, a health-care provider, pursuant to former article 4590i of the Medical Liability and Improvement Act. In response to a general negligence question and standard, predicated damage questions, the jury found TIRR negligent and awarded $300,000 for mental anguish that A.B. sustained in the past and $625,000 for mental anguish that, in reasonable probability, she would sustain in the future. In response to TIRR's motion for judgment notwithstanding the verdict, the trial court vacated the jury's award of future damages. The parties eventually settled the claim for past damages, and a trust was created for the benefit of A.B. as to those damages. N.N.'s sole issue on appeal challenges the trial court's entry of judgment notwithstanding the verdict on the issue of damages for future mental anguish.
We affirm the trial court's judgment notwithstanding the verdict on the issue of damages for future mental anguish. Because TIRR appealed only if we sustained N.N.'s issue, we do not address TIRR's appeal, which challenges the jury's finding TIRR negligent and awarding damages for A.B.'s past mental anguish.
Facts and Procedural History
When she was 18 years old, A.B. sustained a serious brain injury in a June 6, 1997 automobile accident that also resulted in her sister's death. A.B. was in a coma after the accident and was still in a coma when surgery was performed to remove the right frontal and right temporal lobes of her brain. On July 2, 1997, she was transferred to TIRR, where she emerged from her coma, and was undergoing rehabilitation therapy for her brain injury. She was transferred briefly to another facility, but returned to TIRR on August 22, 1997.
On August 21, 1997, the day before A.B. returned to TIRR, a male, brain-damaged patient in his early 30's, was admitted to the same third-floor unit as A.B. Because of the known propensity of brain-injured patients to wander and become disoriented, access to this floor was restricted. The patient, Mr. B., occupied the room across the corridor from A.B.'s room. Both rooms were the closest possible to the nurse's station for that area.
On the evening of August 30, 1997, A.B. was in her room and in bed. Her bed was a "modular box bed," which consisted of a mattress on the floor surrounded by a three-and-one-half foot wall, or railing. She was given a suppository medication to facilitate a bowel movement, and her diaper was left open with a protective pad placed beneath her pelvis, according to standard nursing practice that facilitated cleaning the patient. When A.B. was observed having a bowel movement at about 9 p.m., a nurse closed the door to A.B.'s room to permit her privacy, also according to standard nursing practice. Shortly after 9 p.m., and about when A.B. was due to be checked and cleaned, a nurse saw Mr. B. walking from the direction of A.B.'s room. Nurses went to A.B. immediately, and a nurse followed Mr. B to his room.
When the nurses entered A.B.'s room, they found her lying in her bed, as she held a telephone to her ear and appeared to be involved in a conversation. Her diaper was open, as before, but feces had become smeared on her perianal area and the pad beneath her. In addition, her bed was open at one end, and footprints of feces appeared on the interior walls at the foot of her bed. When asked if anyone had touched her, A.B. indicated that a sexual assault had tak
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