Patricia Mosley// Texas Health and Human Services Commission and Texas Department of Family and Protective Services v. Texas Health and Human Services Commission and Texas Department of Family and Protective Services// Cross-Appellee, Patricia Mosley
03-16-00358-CV
Tex. App.Sep 28, 2016Background
- Patricia Mosley, a direct-care worker at a home-and-community-based services (HCS) group home, was assigned one-to-one, within-arm’s-length supervision of AW (a Level-9 consumer with a history of self-harm) on February 14, 2014.
- Mosley worked alone with AW for nearly seven hours because staffing shortages required an extra shift; she had limited prior training specific to AW and had not previously worked one-to-one with AW alone.
- Around mid-afternoon a coworker called the house; Mosley took the house phone from AW and spoke for several minutes. While Mosley was on the call AW walked to the bathroom and later obtained two AA batteries from a housemate’s remote and swallowed them.
- AW required emergency endoscopy to remove the batteries; DFPS investigated and concluded Mosley committed “neglect” constituting “reportable conduct” and placed her on the Employee Misconduct Registry (EMR).
- Mosley appealed administratively; an HHSC ALJ sustained DFPS’s determination. Mosley sought judicial review; the trial court denied defendants’ plea to the jurisdiction and affirmed the HHSC final order. Mosley’s appellate brief argues the HHSC lacked substantial evidence and misapplied a negligence standard.
Issues
| Issue | Mosley’s Argument | DFPS/HHSC’s Argument | Held (administrative/trial posture) |
|---|---|---|---|
| Whether Mosley committed "neglect" (defined as a negligent act/omission) by failing to maintain one‑to‑one arm’s‑length supervision | Mosley: negligence requires reasonable‑person analysis and foreseeability; it was impossible to maintain continuous arm’s‑length supervision when staffed alone for hours and no warning signs existed | DFPS/HHSC: Mosley left AW out of required arm’s‑length supervision; AW’s history and treatment plan required one‑to‑one care and Mosley’s lapse placed AW at foreseeable risk | HHSC ALJ: sustained finding of neglect and reportable conduct; trial court affirmed HHSC final order |
| Foreseeability and standard of care — whether AW’s asymptomatic, surreptitious ingestion was foreseeable | Mosley: treatment plans and contemporaneous logs showed no voices, threats, or precursors; an ordinary worker would not have foreseen secretive self‑harm during a brief lapse | DFPS/HHSC: AW’s history of swallowing objects made the risk foreseeable when the worker left required supervision | HHSC ALJ: concluded Mosley’s failure to remain within arm’s length placed AW at foreseeable risk |
| Whether HHSC improperly applied strict liability by treating any deviation from plan as neglect without duration/causation findings | Mosley: HHSC made no factual finding on duration AW was out of arm’s reach; without duration, agency used hindsight and effectively imposed strict liability | DFPS/HHSC: emphasized that Mosley admitted she did not maintain arms‑length supervision while on the phone for several minutes | HHSC ALJ/trial court: did not adopt Mosley’s challenge; agency/trial court sustained the finding despite lack of explicit duration finding |
| Causation — whether Mosley’s conduct caused or may have caused AW’s harm | Mosley: proximate and cause‑in‑fact require foreseeability and a showing that the harm likely would not have occurred if AW had been within arm’s reach; also argues employer failed to provide appropriate plan/training and environment (e.g., unsecured batteries) | DFPS/HHSC: Mosley’s lapse enabled AW to access and ingest batteries, creating a risk warranting medical treatment | HHSC ALJ: found neglect caused or may have caused risk of harm; ordered EMR listing; trial court affirmed |
Key Cases Cited
- Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010) (foreseeability analysis focuses on what defendant knew or should have known under the circumstances)
- Jackson v. Axelrad, 221 S.W.3d 650 (Tex. 2007) (reasonable‑person standard accounts for actor’s actual knowledge and skills)
- Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998) (foreseeability in premises‑liability examines proximity, recency, frequency, similarity, and publicity)
- McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901 (Tex. 1980) (cause‑in‑fact requires showing the defendant’s act was a substantial factor in bringing about the injury)
- Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006) (elements of negligence include duty, breach, and proximate cause)
- Dyess v. Harris, 321 S.W.3d 9 (Tex. App.—Houston [1st Dist.] 2009) (foreseeability measured prospectively, not by hindsight)
- Rio Grande Reg’l Hosp., Inc. v. Villarreal, 329 S.W.3d 594 (Tex. App.—Corpus Christi 2010) (distinguishing cases where extended unsupervised periods and provision of means to self‑harm supported liability)