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Pt. injured in fall from exam table: malpractice or negligence?



CASE ON POINT: Grossman v. Barke, 2005 WL 249045 A.2d--PA

ISSUE: As simple as it sounds, too many suits result from falls from examination tables. In this unusual Pennsylvania case an elderly, morbidly obese, diabetic patient fell from a physician's examination table while he went to get a kit to remove sutures in her ankle. The patient suffered a fractured pelvis, which required several surgeries. Was the physician's liability, if any, a direct result of medical malpractice Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional.  or simple negligence?

CASE FACTS: Marjorie Dudley was in the office of her longtime physician Dr. James Barke. Dudley, who was 69 years-old and weighed 300 lbs. was in the office to "obtain a pre-examination for a knee replacement." At the time of the office visit, the patient had sutures in her ankle from a previous surgical procedure. The patient asked Dr. Barke to remove the sutures. After agreeing to do so, Dr. Barke directed the patient to get on the examination table, at which time he left the room to find a suture suture /su·ture/ (soo´cher)
1. sutura.

2. a stitch or series of stitches made to secure apposition of the edges of a surgical or traumatic wound.

3. to apply such stitches.

4.
 removal kit. The patient was able to get into a sitting position on the examination table. However, before Dr. Barke returned, the patient became dizzy (or lost her equilibrium) and fell from the examination table, sustaining injuries among which was a fractured pelvis, which resulted in several surgical procedures. The patient brought suit against Dr. Barke alleging that his negligence was a direct and proximate cause direct and proximate cause n. the immediate reason damage was caused by an act or ommission (negligence), the negligence must have caused the damages, without intervention of another party, and cannot be remote in time or place.  of her fractured pelvis. During the course of trial, a question arose with regard to whether the patient stated a cause of action sounding in medical malpractice or in ordinary negligence. The plaintiff's medical expert, Dr. Jay Bayer, testified in his deposition that the case was "one of basic negligence as opposed to medical malpractice." The patient filed a motion in limine motion in limine (limb-in-nay) n. from Latin for "threshold," a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial.  seeking, inter alia [Latin, Among other things.] A phrase used in Pleading to designate that a particular statute set out therein is only a part of the statute that is relevant to the facts of the lawsuit and not the entire statute. , a determination as to whether her complaint sufficiently stated a cause of action for ordinary negligence, "as opposed to a medical malpractice cause of action ..." The trial court denied the plaintiff's motion in limine. The trial court granted Dr. Barke's motion for summary judgment motion for summary judgment n. a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on recorded (testimony outside court) affidavits (or declarations under penalty of perjury), depositions, admissions of fact, answers  on the grounds that the plaintiffs claims were premised on medical malpractice and required the expert medical testimony, which was found to be lacking. The trial court concluded that Dr. Bayer's expert testimony Testimony about a scientific, technical, or professional issue given by a person qualified to testify because of familiarity with the subject or special training in the field.  on behalf of the plaintiff did not support a medical negligence claim, either on the standard of care or causation. The plaintiff appealed.

COURT'S OPINION: The Superior Court of Pennsylvania The Superior Court of Pennsylvania is the intermediate court of appeal in the Commonwealth of Pennsylvania, between the trial court of general jurisdiction -- called the Court of Common Pleas -- and the Supreme Court of Pennsylvania.  affirmed the lower court's order granting Dr. Barke's motion for summary judgment. The court held, inter alia, that a cause of action sounding in ordinary negligence was not pled in the case. The court found that the plaintiff only presented a cause of action sounding in medical malpractice. Accordingly, the court concluded that it was proper for the trial court to assess the merits of the case pursuant to the principles of medical malpractice rather than ordinary negligence, thereby requiring the plaintiffs expert to testify "to a reasonable degree of medical certainty." The court found that the plaintiffs expert failed to do so.

LEGAL COMMENTARY: It is respectfully submitted that not all courts would have reached the same conclusion as the court did in this case. This is illustrated by a strong dissenting opinion dissenting opinion n. (See: dissent) . The dissenting judge agreed with the majority's conclusion that the plaintiffs claim sounded in medical malpractice and not ordinary negligence. However, the dissenting judge did not agree that the plaintiff failed to establish the requisite elements for a medical malpractice claim. The dissenting judge observed that a review of the plaintiffs expert witness' report reveals that he did opine, to a reasonable degree of medical certainty, that Dr. Barke acted below the applicable standard of care and that his deviation from that standard caused the plaintiffs injuries. Dr. Bayer's report stated that, at the time of her fall, the patient was 69 years old and weighed 300 lbs. Dr. Bayer also indicated that the patient suffered from a number of health conditions including diabetes, hypertension, morbid obesity morbid obesity
n.
The condition of weighing at least twice the ideal weight.


morbid obesity Superobesity Bariatircs A condition defined as 45 kg > ideal body weight, 2 times > ideal/standard weight or, for
, diabetic neuropathy Diabetic Neuropathy Definition

Diabetic neuropathy is a nerve disorder caused by diabetes mellitus. Diabetic neuropathy may be diffuse, affecting several parts of the body, or focal, affecting a specific nerve and part of the body.
, anemia, and cardiovascular disease Cardiovascular disease
Disease that affects the heart and blood vessels.

Mentioned in: Lipoproteins Test

cardiovascular disease 
. The dissenting judge observed that Dr. Bayer opined that in view of the plaintiffs physical characteristics and medical problems, Dr. Barke "acted negligently" by asking the patient to climb up on the examination table and to remain seated at the table while she was unattended. The court observed that Dr. Bayer stated that "good safety rules of an office, clinic, or a hospital are to assist the patient on and off this type of examination table." This was certainly applicable to this patient who had many of the characteristics of a patient who might fall.
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Title Annotation:Medical Law Case of the Month
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Geographic Code:1USA
Date:Feb 1, 2005
Words:772
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