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Hospital law decisions of note.

MA: Home Failed to Follow its 'Care Plan' for Pt: Court's Directed Verdict for Home Reversed

CASE FACTS: Fifty Three year-old Theresa Pitts was admitted as a patient at Wingate at Brighton Nursing Home (Wingate) suffering from numerous serious medical conditions, including a brain disorder ... dementia, seizures, and "profound osteoporosis." She was brought to Wingate for physical rehabilitation to enable her to ambulate on her own with a walker. Wingate's evaluation, done on her arrival, noted she presented a "potential for falls." With regard to the level of assistance required for transfers to the bathroom and the like, the nursing home's "care plan" for Theresa, who was five feet three inches tall and weighed 200 pounds, was an "assist for two" be employed. At 200 p.m., on October 21, 2001, Theresa's daughter found her mother sitting on a toilet, where an employee had brought her some undisclosed time before. She directed her to pull the cord to summon help. A single nurse's aide responded. The aide informed Theresa's daughter that the person who brought her to the bathroom had gone to lunch. Then, outside the daughter's view, the aide sought to assist Theresa from the toilet into her wheelchair. Theresa fell to the floor, allegedly because the aide deviated from the applicable standard of care in at least three respects: trying to do the transfer alone when two aides were required, failing to use a device known as a "gait belt" and failing to lock the wheels of the wheelchair. The aide admitted in the immediate aftermath of the incident that Theresa "missed the wheelchair and fell on her 'bum.' After the fall, her daughter observed her on the floor with her leg bent in front of her and her feet pushed up against the wall ... holding on to the toilet and a bar on the wall so she would not fall further backwards and bang her head. Wingate's own records documented that Theresa "fell while transferring." Theresa had pain in her leg and was sent to a hospital where she was diagnosed with fractures of the tibia and fibula in the ankle area of her right leg. Theresa filed suit against Wingate. Wingate's expert witness, Dr. John Richmond, was expected to testify that, "based on the severe demineralization suffered by [the plaintiff] and the spiral configuration of her right tibial fracture," the "fracture was pathologic in nature and thus, not caused by trauma from a fall to the ground." In light of Theresa's osteoporosis and Dr. Richmond's expected testimony, the trial judge concluded that since Theresa failed to proffer the necessary medical expert for the jury to understand when and how Theresa broke her bones, the trial judge granted a directed verdict for Wingate. Theresa appealed.

COURT'S OPINION: The Appeals Court of Massachusetts, Suffolk, reversed the judgment entered by the lower court and remanded the case for trial. The court held, inter alia, that there was a question of fact to be decided by a jury! Pitts v. Wingate N.E. 2d 74, 84 Mass, App. Ct. 285 (7/26/2012)-MA

ME: Suit v Hospital Required Prelitigation Panel: State Supreme Court Vacated Trial Court's Order

CASE FACTS: On April 27, 2006, Paul Levesque underwent aortobifemoral bypass surgery performed by Dr. Allen Ingraham, at Central Maine Medical Center (Center). Following surgery, Paul was placed in a surgical care unit. Two days post surgery, Paul's wife and a Center nurse discovered that Paul had developed a decubitus ulcer on his tailbone. Dr. Ingraham was away over that weekend, and his partner, Dr. Pamela Rietschel, was responsible for Paul's care during his absence. Both physicians were partners in an independent, private medical practice with privileges to treat patients at the Center. Subsequently, Paul's wife called Dr. Rietschel and expressed concern that Paul was overmedicated. Later, Dr. Rietschel had difficulty waking Paul and ordered a reduction in the narcotics he was receiving. When Dr. Ingraham returned to the hospital on May 1, he was surprised to learn that Paul had developed the ulcer, which worsened as time passed. Paul sought specialized medical care for it. and it took approximately four months to heal. He continues to suffer residual pain, can sit for no longer than ten or fifteen minutes at a time, and developed other physical ailments as a result. On October 26, 2007, the Levesques filed a notice of claim alleging professional negligence against the Center and Dr. Ingraham. The notice initiated the mandatory prelitigation screening and mediation panel process. The claim against the Center appeared to be based primarily on the conduct of the nurses who treated Paul. The notice did not name Dr. Rietschel. Her actions were not a subject of the screening, nor was she named as a witness. The subjects of the inquiry were Dr. Ingraham and the nurses employed by the Center. The panel issued findings that neither Dr. Ingraham nor the Center had deviated from the standard of care. On December 15, 2008, the Levesques filed a joint complaint, naming only Dr. Ingraham and the Center as defendants. (Dr. Ingraham was released from liability. However, Dr. Rietschel was added as a defendant). The trial court granted defendant's motion for summary judgment. The Levesques appealed.

COURT'S OPINION: The Supreme Court of Maine vacated the judgment and remanded the case for further proceedings. The court held, inter alia, that the alleged negligence of a physician whose purportedly negligent acts or omissions were not evaluated by the prelitigation screening panel may not later be brought into the litigation based on a theory of apparent agency. Because the jury's findings against the Center included both the professional negligence of the purported apparent agent, Dr. Rietschel, and the Center's nurses, the entire judgment was ordered to be vacated and the case remanded for further proceedings consistent with the court's opinion. Levesque v. Central Maine Medical Center, 2012 ME 109, A.2d (8/21/2012)-ME


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 Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital lam throughout the United States In addition to his writings as Editor of Medical LAW'S. Nursing Law's At Hospital Law's Regan Repurts, 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. Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World

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Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Article Type:Case overview
Date:Nov 1, 2012
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