Was Failure to Get Clinitron Bed or Turn Pt Cause of Decubitus Ulcers?

CASE ON POINT: Fisher v. North Hills Passavant Hospital, 2001 WL 864441 A.2d - PA

ISSUE: A recurring complaint is the failure to properly care for patients who are at risk for decubitus ulcers. In this Pennsylvania case, a paraplegic patient presented an extraordinary risk. However, despite the fact of the extraordinary risk, there was evidence that the care givers failed to provide a Clinitron Bed or otherwise provide that the patient be turned at regular and frequent intervals.

CASE FACTS: Edward Fisher spent approximately nine and a half hours at North Hills Passavant Hospital before being transferred to West Penn Hospital. At West Penn Hospital two decubitus ulcers were found on the patient. The evidence indicated that the ulcer on the patient's right trochanter did not heal and worsened to a point that two separate surgeries were required. The case was submitted to a jury which after trial rendered a verdict in favor of the defendant hospital. The patient and his wife filed a motion for post-trial relief raising three issues. The issues each concerned trial court rulings which disallowed evidence designed to inform the trial jury that a nurse, Ms. Witt, employed by the hospital, had been suspended for three days following complaints regarding the patient's care. Specifically, the plaintiffs challenged the exclusion of evidence of any incident report, titled "Warning Notice," and an accompanying memorandum which informed the nurse that she was suspended for three days. The plaintiffs also claimed that the court improperly precluded them from offering testimonial evidence regarding the nurse's suspension. Finally, they asserted that they should have been permitted to question a witness regarding a conversation between a supervising nurse and the patient's physician relating to complaints about the patient's care and the resulting suspension of a staff nurse. The trial court ruled that the evidence sought to be admitted was of low probative value which, under the circumstances of the case was, according to the trial court, outweighed by the risk of "unfair prejudice to the defendant hospital." The court dismissed the plaintiffs claims that the exhibit sought to be admitted was a business record and that the statements that plaintiffs sought to introduce into evidence were not admissible as "admissions." The plaintiffs appealed.

COURT'S OPINION: The Superior Court of Pennsylvania reversed the judgment of the lower court, ordered a new trial for the plaintiffs, and remanded the case to the lower court. The court held, inter alia, that the plaintiffs should have been permitted to question a witness to expose her bias. The court agreed that the trial court's finding that the evidentiary value of the documents which the plaintiffs sought to introduce was outweighed by their potentially prejudicial nature. The court noted that the actual investigation of the matter was to continue during Ms. Witt's suspension. Accordingly, the court held that the trial court was acting "within its discretion" in disallowing the admission of this exhibit. The court further noted that at trial, the plaintiffs' counsel was permitted to ask Ms. Witt if she learned that a complaint was made about her conduct by the patient's wife. Although she responded affirmatively, the court did not permit any further questioning regarding any disciplining of Ms. Witt.

LEGAL COMMENTARY: The court noted that the patient testified that he "begged" the nursing staff to turn him. He stated "I couldn't turn myself. I was afraid to at that angle." The court ruled that the lower court erred in refusing to permit the plaintiffs the opportunity to question Ms. Witt about the results of their complaints which culminated in her suspension. The court concluded that this error "was not harmless" in view of the credibility determination that the jury was asked to make. The court noted that plaintiffs sought review of the trial court's ruling prohibiting them from eliciting testimony about a conversation between an investigated nurse and the patient's physician. The court concluded by noting that the patient's charts did not document that he had ever been turned while in the emergency room. This case illustrates the importance of charting. If a procedure is required to have been charted, and a patient's chart fails to indicate that it was charted, there is a presumption that the procedure was, in fact, not performed. Although this may be rebutted, the failure to chart a procedure which should be charted places the burden on the party who failed to chart to rebut the presumption that the act was done.

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 Tammello & Associates. He has presented seminars on medical nursing and hospitals 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 America Law.