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FEATURE A Death in McAllen What the death of Noe Martinez Sr. reveals about the nursing home crisis to come BY DAVE MANN Alone in the nursing home, as Alzheimer’s devoured his mind, Noe Martinez Sr. fastened onto a sliver of memory he would never forget. His son’s name was worn into his mind. Before the nursing home, he had lived with his son, Noe Martinez Jr., for three years in their Edinburg home. A nurse had visited during the day. At night, though, it was up to Noe Jr. His father would call Noe Jr.’s name when he needed the bathroom or was hungry, which was often because of the diabetes, or when he couldn’t sleep. The son spent many nights in his father’s room, cajoling the older man to sleep. Eventually, the strain of caring for his dad and working demanding hours became too much. In March 2004, Noe Jr. and his sister Leticia decided to put their 77-year-old father in a nursing home. Even there, when he needed something, Noe Sr. would call out for his son. Around 3 a.m. on July 4, 2004, at the McAllen Nursing Center, Noe Sr. yelled out for help. Perhaps he called for his son. He told the attendant that he was hungry. Noe Sr. no longer had any teeth and had been prescribed a diet of only pureed and soft food. When Noe Sr. asked for food that night, the person on duty, a vocational nurse, didn’t check the patient records. Despite the late hour, she went to fetch him something to eat: a peanut butter and jelly sandwich. Without his dentures or even a glass of water, Noe Sr. choked on the food. He suffered his first heart attack at the nursing home. After paramedics revived him, a second and more serious one occurred at the hospital. When the Martinez family arrived, their father was brain dead. A respirator kept him alive. Doctors told Noe Jr. and Leticia that their father would never regain consciousness. It was hard to give up all hope, though. Sometimes his eyes would pop open. Doctors said it was because of a pressure build up. Sitting beside the hospital bed, Noe Jr. would close the older man’s eyes, only to see them flip open again. The eyes were lifeless, unmoving. After two weeks, they knew their father was gone, and they told doctors to remove the machine’s support. Noe Sr. died on July 17. Their father’s premature death wasn’t caused simply by a single attendant’s negligence. Complicit is the entire system of nursing home care in Texas. Corporate owners such as the ones that run McAllen Nursing Center have little to fear financially if a vocational nurse or a poorly trained nurse’s aide negligently kills a patient. When Martinez family members tried to file a lawsuit fol Noe Martinez Sr. photo courtesy of the Martinez family lowing Noe Sr.’s death, they ran hard into one of Texas’ most controversial recent laws. In 2003, the state enacted sweeping legislation designed to transform the civil justice system. Among many other provisions, the statute capped damages for pain and suffering in all medical malpractice lawsuits, including those against nursing homes, at $250,000, removing a deterrent to bad behavior in the process. The more politically connected nursing home companies had lobbied fiercely for the bill, spending hundreds of thousands of dollars on building a new Republican leadership in the Texas Legislature. Now, Republican lawmakers in Washington, D.C., want to apply Texas’ litigation cap to the rest of the nation. GOP congressional leaders have composed their own civil justice reform bill that would cap all medical malpractice damages at $250,000 nationally. The legislation has passed the U.S. House but stalled thus far in the Senate. If it does pass, the federal cap would supersede all state mal 14 THE TEXAS OBSERVER SEPTEMBER 23, 2005