Pt. Falls from Third Floor Window of Locked Psych Ward.

CASE ON POINT: Hofflander v. St. Catherine's Hosp., No. 00-2467 (Wis App 8/8/2001) N.W.2d

ISSUE: Were the psych-patients running the ward?

CASE FACTS: On December 28, 1996, police from the City of Kenosha, Wisconsin, responded to a call regarding a suicidal individual. Family and friends identified the person as Lori Hofflander and informed officers that she had previously threatened to kill herself by taking an overdose of Valium. She had been distraught over losing custody of her children. Officers took her into custody and transported her to St. Catherine's Hospital, where she was involuntarily admitted in accordance with Wisconsin law. Dr. Ligay Ilagan-Newman completed a history and physical examination report the next day. The physician's impression included dysthymia and borderline personality disorder. She noted that "suicide precaution initially ordered, now discontinued." The patient was placed in room 307 on the third floor of the hospital's psychiatric unit. The hospital contracted with Horizon Mental Health Management, Inc., to manage that unit. Horizon's managers supervise St. Catherine's staff and develop and implement policies and procedures for the unit. Some of the safety policies included patient rounds on a hourly basis during the day and every half hour at night, special suicide and elopement precautions, and an environmental round on every shift to check for unsafe conditions. Windows were fitted with Lexon coverings to prevent patient access, and air conditioning units were affixed with safety screws. During the patient's two,day stay at the hospital, she exhibited volatile and uncooperative behavior. At approximately 5:15 pm, on December 30, 1996, Dr. Ashok Shah interviewed the patient. Dr. Shah did not believe that she had a suicidal ideation. The interview ended at about 5:45 pm, at which time, he entered a note of his plan to decrease Valium, continue Prozac, and allow the patient to sign for voluntary outpatient treatment once stable. Dr. Shah then asked Nurse Cathy Witheril to check on the patient because she was irritable. At Dr. Shah's request, Nurse Witheril went to the patient's room and discovered her putting on her high-top black shoes with laces she had made by tearing strips from a bed sheet. Nurse Witheril removed the shoes and laces, observing that otherwise Hofflander's room looked undisturbed. Five minutes later, the patient appeared at the nurse's station asking for her make-up. Dr. Shah directed nurses not to get the patient any glass objects and the make-up was dispensed into a medicine cup. The nurses observed the patient taking phone numbers from her purse and going to the telephone lounge. The patient telephoned Pam Stewart to bring her car to the hospital because she was planning to escape. She then went to Room 309 because a patient told her there was a loose air conditioning unit in the window. The patient pulled the air conditioner toward her, and it crashed to the floor. She tied some bed sheets together affixing one end to the corner of the window. As she attempted to exit the window and climb down, she lost her grip and fell from the third-story window. She suffered multiple injuries, including a ruptured spleen and fractures to her ribs, pelvis, and arm. The patient brought suit against St. Catherine's and Horizon, alleging negligence and safe place violations. The trial court granted the defendants' motion for summary judgment. The plaintiff appealed.

COURT'S OPINION: The Court of Appeals of Wisconsin reversed the judgment of the lower court and remanded the case. The court held, inter alia, that the case was governed by the Jankee "Custody and Control" Rule. The court found the critical issue to be whether the "Custody and Control" Rule applied to the facts in this case thereby, eliminating the patient's contributory negligence as an affirmative defense.

LEGAL COMMENTARY: It is obvious that the hospital's staff was virtually oblivious to the very obvious risk of elopement which this patient presented. It is interesting to note that the patient was not observed going to another patient's room just minutes after being caught with shoe laces and was able to single-handily remove an air conditioning unit from a window when it was supposed to be secure. Further the crash of the air conditioning unit, when removed from the window, failed to evoke any response from the nursing staff. The court concluded that it was quite possible, if not quite likely, that a jury might believe that the care givers failed to exercise that degree of nursing care that the patient's mental condition required.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 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 prolific 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 and Marquis Who's Who in American Law.