Med-mal or negligence? Court wants more evidence

By Douglas Levy
BridgeTower Media Newswires
 
DETROIT — More evidence is needed to determine whether a stroke patient’s two falls while being assisted by a nurse to the bathroom was medical malpractice or ordinary negligence, ruled a Michigan Court of Appeals panel.

The Aug. 16 published decision reverses the defendant hospital’s motion for summary disposition, which claimed the alleged acts of negligence were determinations of medical judgment “not within the common knowledge and experience of laypersons.”

The plaintiff had argued that medical expertise was not necessary for a jury to decide whether an aide dropping someone was negligence.

But the appellate panel said particular elements in the case — including a professional determining whether more than one assistant was needed to move a patient — could lend themselves as going either way in terms of negligence or med-mal.

“Perhaps the suit presents a mix of such claims,” the panel wrote.

The Oakland County case is Trowell v. Providence Hospital and Medical Centers Inc. The opinion was written by Judge William B. Murphy, joined by Judge Cynthia Diane Stephens and Judge Mark T. Boonstra.

In the case, the patient, Audrey Trowell, was admitted to Providence after suffering an aneurysm-related stroke. She alleged having been advised that two nurses were needed to assist her with getting to the ICU bathroom, but “on several occasions” only one unassisted nurse was used.

Trowell then alleged that an unassisted nurse, while helping her going to and using the bathroom, dropped her, causing Trowell to hit her head on a wheelchair. The complaint further stated that the nurse dropped Trowell a second time.

Trowell asserted that as a result of the two falls, she suffered a torn rotator cuff requiring multiple surgeries and ongoing treatment, as well as “bleeding on the brain.”

In its answer, Providence argued that Trowell’s suit was time-barred by the two-year statute of limitations for med-mal actions, and that she failed to serve a notice of intent and file an affidavit of merit.

Providence also presented arguments that the matter involved determinations of medical judgment “not within the common knowledge and experience of laypersons.” Further, the hospital said med-mal can occur only within the course of “a professional relationship” and that Providence had established one with Trowell.

In her amended complaint, Trowell said the hospital was negligent because, by failing to ensure her safety while in the hospital, it departed from the standard of care. The lower court upheld the hospital’s motion.

In its analysis, the Court of Appeals looked to Bryant v Oakpointe Villa Nursing Ctr Inc., a case involving claims of a nursing facility’s negligence when a patient died of “positional asphyxiation” while under the facility’s care.

In Bryant, the Michigan Supreme Court determined “[t]he fact that an employee of a licensed health care facility was engaging in medical care at the time the alleged negligence occurred means that the plaintiff’s claim may possibly sound in medical malpractice; it does not mean that the plaintiff’s claim certainly sounds in medical malpractice.”

The Court of Appeals reasoned that, under Bryant, the physical movement or transfer of a patient by medical staff “may or may not implicate professional judgment.”

In addition, the appellate court cited Sturgis Bank & Trust Co v Hillsdale Community Health Ctr, a case involving an alleged closed-head injury resulting from a hospital bed fall.

The patient in that case was “lethargic, in pain, uncooperative, noncompliant, and had labored breathing... [The patient was] being medicated with morphine for pain, and instructed not to get out of bed.”

The 2-1 panel held that Hillsdale’s nurses “were negligent in failing to prevent [the patient’s] fall, in permitting her to arise unassisted, in failing to protect her from falling, and in otherwise failing to exercise such measures when the nurses knew, or should have known, of [the patient’s] risk of falling.”

The Trowell panel reasoned that when it came to the argument of knowing whether one or more aides or nurses would be needed to assist Trowell in accessing the bathroom, “medical judgment, knowledge, and expertise could certainly play an integral role in determining whether one person or two persons should assist a patient in walking or moving.

“A patient’s physical and mental state or condition, as impacted by illness, surgery, anesthesia, medications, and the like, may very well dictate the number of hospital employees needed to safely escort or move the patient from one location to another and require testimony from medical experts.”

Such incidents, the judges wrote, “implicate medical judgment in conjunction with matters that do not implicate medical judgment relative to evaluating whether negligence occurred in moving or handling a patient, which would effectively make the case a medical malpractice action.”

Yet, the panel added, “in certain cases, factors not requiring or implicating medical judgment may be fully sufficient in and of themselves to properly assess the reasonableness of conduct, falling within the realm of common knowledge and experience.

"...[W]e can also envision a situation in which the determination regarding whether it was negligent to employ just one worker to assist a patient can be made by a jury on the basis of the jurors’ common knowledge and experience.”

In addition, after Trowell was dropped the first time and injured, “it is possible that lay jurors, on the basis of common knowledge and experience and absent consideration of medical judgment, could readily determine that it was unreasonable for the nurse’s aide to simply and immediately continue her effort to get plaintiff to the bathroom without seeking help from other hospital personnel.”

The judges concluded that “further factual development” is needed in determining med-mal or ordinary negligence, and that the nurse’s aide’s testimony “would appear to be a key factor” in the argument.