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Paraplegic hospital Pt. injured in transfer from wheel chair to shower.

CASE FACTS: Bradley Green, a paraplegic since 1985, was admitted to Box Butte General Hospital (Hospital) on March 6, 2005, with pneumonia. On March 7, Bradley wanted to take a shower. The staff allowed Green to have someone bring his personal shower chair from home. A nurse's aide placed the shower chair in the shower of the patient's bathroom. She then allowed Bradley to attempt to transfer himself from his wheelchair to the shower chair unassisted. During the transfer, the shower chair slipped and Bradley fell sustaining injuries to his left shoulder. Bradley filed suit against the Hospital, alleging that the Hospital was negligent and that it had failed to exercise a degree of skill and care ordinarily exercised by a hospital in Alliance, Box Butte County, Nebraska, or a similarly situated area. He alleged that such negligence and breach of the standard of care were the proximate cause of his injuries. The Hospital generally denied that it had breached the standard of care or that its employees' actions had caused any injury or damage to Bradley. After discovery. Bradley moved for partial summary judgment on the issues of negligence and causation. In support of his motion he offered his deposition testimony, the affidavit of a professor of nursing, and the Hospital's responses to his requests for admissions. He also introduced the deposition testimony of his treating physician and the deposition testimony of a registered practical nurse at the Hospital. In opposition to the motion for summary judgment, the Hospital presented the affidavits of two of its employees who were present at the time of Bradley's fall. The District Court granted Bradley's motion for partial summary judgment. The court did not specifically state that there was no material issue of fact, but instead stated that it was "finding that the Hospital was "guilty of negligence" and that the Hospital's negligence was a proximate cause of injuries to Bradley, the nature and extent of which will have to be determined at trial." Susan Hoff, a Registered Nurse at the Hospital, testified that a nurse assistant was qualified to move patients and help with bathing. She was confronted with a copy of the Hospital's policies and procedures. Those policies and procedures were not themselves placed in evidence at the summary judgment hearing. Nurse Hoff noted that the policies regarding patient transfers were for the safety of both the patient and the employee doing the transfer. In light of the policies and procedures presented to her, she admitted it was the Hospital's policy to get additional assistance when in doubt about the ability to transfer a patient safely. And, if a patient is unable to bear his own weight, hospital policy was to use a mechanical lift, and two employees. The Hospital appealed.

COURT'S OPINION: The Supreme Court of Nebraska reversed the judgment of the lower court and remanded the case for a new trial. The court held, inter alia, that summary judgment should not be used to deprive a litigant of a formal trial if there is a genuine issue of fact. The purpose of summary judgment is not to cut litigants off from their right of trial by jury if they really have issues to try. A motion for summary judgment is not a substitute for a motion for a directed verdict or for error proceedings taken after a full trial. When viewing the evidence presented at the summary judgment hearing in a light most favorable to the non-moving party, in this case the defendant, the plaintiff movant failed to establish each element of his cause of action as a matter of law. Therefore, the District Court erred in granting partial summary judgment in favor of Bradley and remanded the case for a new trial which will include the issues of negligence and liability.

LEGAL COMMENTARY: While the court made it crystal clear that Bradley was not entitled to summary judgment, there is no apparent reason why, given the facts elicited in the case, he may not be able to prevail in the course of a trial. There are any number of facts, which reveal that it is probably more likely than not that nursing personnel were not familiar with allowing a paraplegic to enter and leave a shower safely. The facts revealed the personnel was unfamiliar with a shower were not only not familiar with a shower chair, but that they were unable to even locate one in the entire hospital. Thus, necessitating the patient to have his own brought to him from home. Further, Bradley stated that he had never been injured in transferring himself from his wheelchair onto his own shower equipment in the entire time he had been a paraplegic, which was in 1985. Obviously, the testimony of Nurse Huff regarding the procedure, or better still the lack of procedure and protocol for safely transferring a paraplegic from his or her wheelchair, to his or her shower equipment at the time Bradley fell should not be any different at trial than it was as presented in conjunction with the Hospital's objection to Bradley's motion for summary judgment. Accordingly, although the Hospital may have won the battle in having the District Court's order granting summary judgment reversed by the Supreme Court of Nebraska, there is no guarantee that a finder of fact will view the evidence any different than the District Court. Editor's Note: With due respect for the parties on each side and their respective counsel, it might he prudent for both parties to seriously explore whether it might he possible to settle this case before trial.

CASE ON. POINT: Green v. Box Butte Gen. Hosp., 284 Neb. 243, S-11-576 --N.W.3d--(8/3/2012)-NE
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Title Annotation:Legal Focus on Hospital Law Issues
Publication:Hospital Law's Regan Report
Date:Sep 1, 2012
Previous Article:Hospital law decisions of note.
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