Amputee's 'other leg' is injured by nurses & amputated.

IN MARCH OF 1997, OLGA WILEY, A DIABETIC, UNDERWENT THE AMPUTATION OF HER LEFT LEG AT HENRY FORD HOSPITAL. The patient remained at the hospital for approximately 10 days after which she was transferred to Henry Ford Cottage Hospital for therapy. While there, nurses attempted to move her from a toilet to her wheelchair. She sustained a laceration of the anterior of her right leg. The laceration was slow to heal. However, the patient was discharged. She was later readmitted for treatment of the laceration on her right leg. Ultimately, the right leg was amputated. The patient and her husband brought suit against the hospital and others alleging that the defendants' negligence in causing the laceration resulted in the loss of her right leg and rendered her a double amputee. After a jury trial in Wayne Circuit Court, the jury returned a verdict in favor of the plaintiffs. The hospital argued that the trial court erred in denying its motions for a directed verdict and judgment notwithstanding the verdict (JNOV). In a medical malpractice case, the plaintiff bares the burden of proving: (1) the applicable standard of care, (2) a breach of that standard by the defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury. Failure to prove any one of these elements is fatal. The common law standard of care applies to malpractice actions against nurses. Therefore, the applicable standard of care is the skill and care ordinarily possessed and exercised by practitioners of the same profession in the same or similar localities. Expert testimony is necessary to establish the standard of care because the ordinary layperson is not equipped by common knowledge and experience to judge the skill and competence of the service and determine whether it meets the standard of practice in the community. The plaintiff's only nursing expert, Donna Rice, R.N., did not provide evidence of the applicable standard of care. She testified only as to what she would have done under the circumstances. The standard of care is not based on how a particular healthcare professional would have acted. Based on the testimony of Nurse Rice, the plaintiff established that the standard of care in transferring a patient required several things: that the nurse assess his ability and the ability of the patient as well as other circumstances that two nurses perform the transfer, use of a gate, belt, preventative care of lower limbs, patient education, and waiting until a patient is ready to move. In its more specific aspects, the standard of care requires that "the patient be at a direct angle to the nurse, that is, in front of the patient, so that you have the knees positioned correctly, putting the patient straight up, making sure the position is correct, and making the pivot, watching the feet, and bringing them down to the wheelchair is the recommended procedure. There was sufficient expert testimony to establish that "it was more likely than not that defendant breached the standard of care."

THE COURT REJECTED THE DEFENDANT'S ARGUMENT THAT THE TRIAL COURT ERRED IN DENYING ITS MOTIONS FOR A DIRECTED VERDICT AND JNOV BECAUSE THE PLAINTIFFS FAILED TO PROVE THAT LACERATION RESULTED IN THE AMPUTATION. The court noted that if the laceration was healing normally, there probably would not be a causal relationship between the larceration and the ulcer. However, there was evidence that larceration was not healing normally. A nursing note dated April 6, 1997, stated: "right shin steristrips with sutures underneath with scant drainage--brownish cleansed and bactracin applied--also right calf." A medical record indicated that the plaintiff "had increased swelling, ... had a temperature, the extremity felt warm, the sutures weren't' healing, it was weeping." The court found that the testimony was consistent with the evidence that the amputation resulted from the larceration.

THE COURT OF APPEALS OF MICHIGAN AFFIRMED THE JUDGMENT OF THE LOWER COURT IN PART, REVERSED IT IN PART, AND REMANDED THE CASE TO THE TRIAL COURT FOR THE APPLICATION OF A CAP ON NONECONOMIC DAMAGES. The Michigan Supreme Court set forth the test for whether a case involves negligence or medical malpractice. The determination as to whether a claim will be held to the standards of proof and procedural requirements of a medical malpractice claim as opposed to an ordinary negligence claim depends on whether the facts raise issues that are within the common knowledge and experience of juries, or alternatively, raise questions involving medical judgment. The court ruled that the plaintiff's allegations involving staffing decisions and patient monitoring involved questions of professional medical management and not ordinary negligence. Wiley v. Henry Ford Cottage Hospital, 668 N.W.2d 402--MI

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A profile writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, and Who's Who in America.