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Wound-Care nurse not targeted in death from infection.

CASE ON POINT: Stokes v. Schindler Elevator Corp., 1D10-1748 FLCA (4/7/2011)-FL

CASE FACTS: As a result of a compensable accident injury, Michael Stokes underwent ankle surgery, after which his surgical incisions did not heal. Notwithstanding the administration of professional wound care and a course of strong antibiotics, Stokes' wounds became swollen, pus-filled, odorous, and inflamed. While under the care of a wound nurse, Stokes became febrile, collapsed, and died. An autopsy performed by the county medical examiner revealed visible colonies of coccoid bacteria, which had formed in Stokes' heart, causing acute inflammation of the heart tissues, the presence of which was preserved on slides and confirmed by microscopic inspection. A post-mortem examination of Stokes' body, performed by a pathologist, revealed marked redness and swelling around the oozing surgical wounds, but, despite a full autopsy, no other source of infection was located. The medical examiner, having ruled out all other possible causes of death and sources of infection, officially concluded that the cause of Stokes' death was the acute bacterial infection in the heart, caused by bacterial infection resulting from the ankle surgery. Stokes' body was cremated. Molly Stokes, the decedent's spouse filed a petition for death and funeral benefits under the Workers' Compensation Law. The employer/carrier (E/C) denied the claim on the basis that Stokes" death was not caused by the ankle infection, and on the additional grounds that Molly was not substantially dependent on the decedent. The doctor who performed the autopsy (a pathologist), and a pathologist who performed an independent medical examination (IMF) on Molly's behalf (both medical doctors whose opinions were admissible before the (JCC), testified that based on their experience, education, and training, and examination of the existing evidence, the cause of the decedent's death, within a reasonable degree of medical certainty, was infectious endocarditis caused by ankle infection. The E/C did not introduce medical evidence supporting its theory that the decedent's death was not caused by the ankle infection. Rather, it retained a non-physician toxicologist who testified that the decedent could have died from other causes, and that one could not scientifically determine the cause of death without culturing the ankle wound to match the bacteria in the ankle and the heart, or identifying epidemiologic studies linking the ankle wounds to endocarditis. The JCC denied he claim for death benefits as a matter of law. Molly appealed.

COURT'S OPINION: The Florida Court of Appeals Reversed the decision of the JCC and Remanded the case for the JCC to make those findings of fact necessary to determine Molly's entitlement to benefits, without reliance on the opinion testimony of the non-physician toxicologist. The court did not address the E/C's ill-suited attempt to reverse the JCC's factual findings regarding Molly's dependency, because the request for the affirmative relief of reversal by the E/C through its was improper. On remand, however, the court ordered that the JCC make ultimate conclusions and findings regarding Molly's dependency.

LEGAL COMMENTARY: In reaching her conclusion regarding the legal (in)sufficiency of the pathologists' testimony, the JCC of necessity adopted or accepted the toxicologist's opinion on issues of medical causation upon which he was not qualified to testify under the Workers' Compensation Law, which specifically states that no medical opinion other than an authorized treating provider, and IME, of an expert medical advisor is admissible in proceedings before the JCC. Proving occupational causation must be established to a reasonable degree of medical certainty and demonstrated by medical evidence only. Because the toxicologist was not a medical doctor, he was precluded from testifying as to the medical cause of the decedent's condition. The toxicologist's testimony was that, absent a culture from the ankle wound, one could not be absolutely certain that the bacteria found clumped in the decedent's heart, in fact, entered through the ankle wound. Editor's Note: The wound-care nurse assigned to the patient, as well as her employer, were fortunate that they were not alleged to have done or failed to do, by errors of commission, what might have eliminated the infection of the decedents ankle, or at least showed some progress in ameliorating to some degree the severity of the infection. This does not necessarily mean that suit could not have been brought against both the nurse and her employer under the doctrine of Respondeat Superior However, there is no reference in the case, as reported, which indicates that any action was taken against the nurse or her employer at least up to the time that the record was established. It is interesting to note that there was a concurring opinion filed, in which the concurring judge alluded to the fact that in his opinion the best course would have been that the claimant had persuaded the court.

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Title Annotation:Nursing Law Case of the Month
Publication:Nursing Law's Regan Report
Date:Jun 1, 2011
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