Rush v. Senior Citizens Nursing Home District of Ray County (212 S.W.3d 155)

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Rush v. Senior Citizens Nursing Home District of Ray County (212 S.W.3d 155)

Rush v. Senior Citizens Nursing Home District of Ray County (212 S.W.3d 155)
Plaintiff (Appellee) – Relatives of Walter Rush (Deceased)
Defendant (Appellant) – Senior Citizens Nursing Home District of Ray County
Missouri Court of Appeals (2007)

Plaintiffs files a wrongful death action against the defendant Nursing Home District as well as a nurse that treated Mr. Rush while at the nursing home and the Director of Nursing at the nursing home. After a jury trial, the district court found for the plaintiffs. The defendants appealed on the grounds that they had sovereign immunity, official immunity, that the  plaintiff’s evidence was insufficient as a matter of law, and that statements made by Plaintiff’s counsel in closing arguments constituted plain error.


Walter Rush was a resident of Shirkey Leisure Acres Nursing Home. He entered the facility suffering from diabetes and Alzheimer’s dementia. Because of his dementia, Walter was unable to regulate his own diet and was dependent upon the home’s staff. Rush’s diabetes was regulated by regular testing of his blood sugar and the administration of insulin when necessary.

On December 27, 2001, Rush’s doctor entered an order that required Rush’s blood sugar be tested four times a day. Insulin was to be administered based on sliding scale order. If Rush’s blood sugar was under 200, he was not to receive any insulin. If his blood sugar was between 201 and 250, he was to automatically receive two units of insulin. If his blood sugar was between 251 and 300, he was to receive 4 units of insulin. If his blood sugar was between 301 and 350, he was to receive 6 units of insulin. If his blood sugar was between 351 and  400, he was to receive 8 units of insulin.

Records show that on April 30, 2002, Rush’s blood sugar tested 250, but no insulin was administered. On May 15, 2002, his blood sugar tested 202 and no insulin was administered. May 16 it tested 214, May 17 it tested 200, May 19 it tested 280 and May 20 it tested 322, yet on none of these occasions was insulin administered.

On May 21, while Rush was under the care of Defendant Bell, his blood tested at 493 and 540, but no insulin was administered.  On May 22, 2002, Mr. Rush was found unresponsive and was finally administered insulin and transferred to the hospital. He died on May 31, 2002.


The district court found for the Plaintiffs.


1)     Did the Omnibus Nursing Home Act waive the District’s Sovereign Immunity?

2)     Were Defendants Bell and Gordon protected under Official Immunity?

3)     Was the evidence presented by the Plaintiffs insufficient as a matter of law?

4)     Did Plaintiff’s counsel’s comments in closing arguments constitute plain error?


1)     Yes

2)     No

3)     No

4)     No

Relying on Bachtel v. Miller County Nursing Home District, 110 S.W.3d 799 (Mo. Banc 2003), the court found sovereign immunity to be waived for nursing home districts so that they be treated no differently than private nursing homes.

They ruled that the immunity clause of the Act should not apply to:

“Any facility or other entity otherwise licensed by the state and operating exclusively under such license and within the limits of such license, unless the activities or services are or are held out as being activities or services normally provided by a licensed facility under section 198.003 to 198.186, 198.200. [nursing home districts], 208.030, and 208.159, RSMo, excepts hospitals licensed under the provision of chapter 197 RSMo.”

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