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Did agency home healthcare nurses cause decendent's arm fracture?

CASE ON POINT: Carter v. Vivyan, 212-Ohio 3652,11AP-1037 (8/14/2012)-OH

CASE FACTS: On August 6, 2009, Richard Carr, Individually and as Administrator of the Estate of his deceased wife, Lisa Carter, filed suit against his former attorneys, Thomas Vivyan and Scott W. Schiff & Associates (Schiff), seeking damages as a result of the defendants' alleged legal malpractice. Richard alleged that he hired the defendants in April 2006 to represent him in a lawsuit regarding injuries his wife sustained while under the care of home healthcare nurses. Approximately two years after taking the case, the defendants' filed a complaint against the nurses and their employer CareStar, Inc. (CareStar), alleging negligence and loss of consortium against the nurses, and respondeat superior against CareStar. The trial court granted summary judgment to the nurses and CareStar, concluding the case involved a medical malpractice claim filed outside the applicable statute of limitations. Richard alleged that the defendants breached the applicable standard of care for a legal professional by failing to plead and prosecute his claims within the applicable statute of limitations. Following defendants' answers to the complaint Schiff filed a motion for summary judgment on April 14, 2011. Schiff alleged he was entitled to summary judgment in the legal malpractice action because the plaintiff could not establish the proximate cause of the decedent's injuries and thus, would not have prevailed in the underlying medical malpractice suit. Schiff supported his motion with citations to plaintiffs' deposition testimony and an affidavit from Schiff's attorney that incorporated by reference a CareStar/Ohio Department of Job and Family Services (ODJFS) Referral Summary Sheet plaintiff produced during discovery. According to that evidence, the decedent suffered from end-state multiple sclerosis in March 2006. As a result of her condition, she was immobile and non-verbal, needing both a feeding tube an a tracheotomy. The decedent required. total care, provided through CareStar pursuant to CareStar's contract with ODJFS. She received the necessary aid from two CareStar licensed practical nurses. Nurse Littlejohn cared for her from 7 am until 4 pm and Nurse Alagbe cared for her from 4 pm to 11 pm, Richard cared for her for the remaining hours. On March 22, 2006, Richard received a call from Nurse Alagbe as she began her shift, informing him that something was wrong with the decedent's arm. Richard called an ambulance to have her transported to the hospital where doctors determined she had fractured the bone in her arm. A doctor at the hospital informed Richard that although the contractures, or tensed muscles, in the arm may have caused some of the resistance, the break required a significant force to swing the arm that way. Richard filed a motion for summary judgment. Both nurses denied engaging in any activity that could have caused the arm to break, and Richard did not know, which of the two broke his wife's arm. The decedent's orthopedic surgeon indicated that he could not identify whether the fracture occurred as the result of negligence. The report concluded that although the cause of the fracture was unknown, it likely "occurred during routine repositioning." Schiff filed a motion for summary judgment, supported by a memorandum with the plaintiffs' affidavit and the affidavit of Dr. Keith Hollingsworth, practicing as an orthopedic surgeon. He concluded that the fracture would have resulted from falling or being dropped onto the arm. He opined that a caregiver would readily know when the fracture occurred since "this type of fracture typically involves significant auditory clues. i.e. a loud snap," and "the right upper extremity would have been in a significantly externally rotated position after the injury." Defendant Vivyan filed a motion for summary judgment on October 24, 2011, alleging that since Vivyan was in the same position as Schiff, Schiff's summary judgment motion should pertain to him as well. The trial court entered judgment granting Vivyan summary judgment. Richard appealed.

COURT'S OPINION: The Court of Appeals of Ohio reversed the judgment of the lower court and remanded the case for trial. The court held, inter alia, that because the defendants' motions for summary judgment raised only the issue of proximate cause, the plaintiff understandably responded to the motion with evidence demonstrating that one of the two nurses proximately caused the injury. Similarly, because the defendants did not argue the standard of care or breach of it in their motion for summary judgment, the plaintiff did not incur a reciprocal burden to submit evidence of breach of it. In the final analysis, defendants premised their motion for summary judgment on the plaintiffs' inability to establish which of the two nurses caused the harm.

LEGAL COMMENTARY: It is almost inconceivable that neither of the two nurses caring for the decedent either heard the snap, which is attendant to the type of fracture sustained, nor did they notice the unusual position of the patient's arm, which they immediately should have recognized for what it was!

HOSPITAL LAW's REGAN REPORT ISSN 1528-847 [C] 2012, published monthly since 1960, is published in Cranston Rhode Island, by MEDICAL LAW PUBLISHING, Inc., EDITOR & PUBLISHER: A. DAVID TAMMELLEO JD. ALL RIGHTS RESERVED. REPUBLICATION AND/OR REPRINTING WITHOUT WRITTEN PERMISSION IS PROHIBITED! Subscriptions: $102.00 per year (12 issues) sent by First Class Mail. Back Issues are $12.00. Binders, with Logo, are available at $25.00 (including S & H). To Subscribe: Telephone (401) 421-4747, Fax (401) 521-9226, E-Mail adtlaw@aol.com 24/7, or Mail to Medical Law Publishing, Inc., PO Box 8186, Cranston RI 02920. Cases and editorial comments are presented for the information of subscribers and readers. This material is not intended as legal advice and should not be used in lieu of such advice. For legal advice on specific hospital issues, subscribers and readers are directed to consult with local legal counsel.

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Title Annotation:Hospital Law Case of the Month
Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Article Type:Case overview
Date:Nov 1, 2012
Words:969
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