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Summary: One of the most important interventions post-operatively is to get a patient up and walking. It minimizes chances of complications such as DVT, Pneumonia, Pulmonary Emboli and Decubitus Ulcers. In this case, a patient fell while ambulating. It would need to be decided if a case could be made for simple negligence on the part of the staff, or true medical malpractice.
The patient came in for a hysterectomy had been on bedrest for two days post-operatively. The potential for complications with extended bedrest are well documented including, Deep Venous Thrombosis, Pneumonia, Pulmonary Emboli. Medical & Nursing Interventions to help minimize post-operative complications are mandatory.
“It has long been recognized that bedrest can produce deconditioning and can impair aerobic performance. (16) The results of the study by Girish et al remind us that inactivity due to obesity or other medical conditions that limit mobility can have a similar deconditioning effect and thereby can increase the risk of postoperative morbidity.”(2)
Ambulation was now medically indicated and attempts were made to get the patient up and walking.
On the first attempt, the patient complained of dizziness and nausea. This was documented, the doctor made aware, and attempts scheduled for later in the day.
On the second attempt, the patient was questioned about the earlier dizziness and nausea. It was no longer present. The patient, assisted by staff, got up, fell and broke her ankle.
It should be noted here that falls happen frequently in hospitals and nursing homes. They are major source of mortality and morbidity.
“Falls are among the most common incidents reported in institutions, although incident reports may underestimate their true occurrence. The incidence of falls among hospitalized patients varies according to the risk factors and case mix of the patient population as well as the presence of falls prevention measures. Rubinstein has reported fall rates of 0.6 to 2.9 falls annually per bed in hospitalized patients and 0.6 to 3.6 falls annually per bed in long-term care institutions, based on published data. About 50% of the 1.7 million nursing home residents in the United States fall at least once each year, resulting in serious injury in about 10% of residents. The total cost of falls injuries in 1994 for adults aged 65 years and older was estimated at $20.2 billion.”(3)
The plaintiff and her family would sue the hospital for “Simple Negligence.” This is as opposed to a suit filed for “Medical Malpractice.” The difference between the two is in the severity of alleged negligence, potential for damages and the burden of proof. This makes the distinction critical.
The nurse would testify in her depositions, and the medical records in the chart would show, that she had assessed the patient prior to getting her up. To the best of her knowledge, she saw no reason not to ambulate the patient. She had made the attempt to carry out the doctor's orders following the applicable standards of care.
In preparing the case, the family would argue that because the case was filed for “simple negligence” and not “medical malpractice,” the testimony of an expert witness was not required to prove their case.
Because of how the suit was filed, the hospital filed for summary judgment to have the case dismissed. The hospital argued that their was, based on the facts and circumstances, no convincing argument of “simple negligence to be made. The court agreed and dismissed the action:
The plaintiff would appeal the decision.
Questions to be answered:
1. Was the nurse clearly negligent in her attempt to ambulate the patient, to the extent that a case for simple negligence could be established?
2. Was the alleged negligence of the nurse, so clear cut, that it would make the testimony of an expert witness unnecessary?
3. Was the appropriate classification of the lawsuit Medical Malpractice?
On review of the facts, it was clear that the indication to ambulate the patient was appropriate. The documentation and testimony presented by the nurse showed that the patient was assessed to be “safe to ambulate” within a nursing scope of practice. There were no clear contraindications to ambulation.
The documentation in the chart was clear, concise and elaborately detailed. Typically after an incident occurs, nurses and other staff members take extra care to document carefully. This made determining what happened (and what did not happen) relatively straightforward.
The nurse acted appropriately in ambulating the patient. The fact that the patient fell and was injured is unfortunate, however it cannot be attributed to negligence on the part of the nurse.
An analogy to this is the post-operative patient that can have complications. A patient having a hip replacement can form a clot after surgery and develop a stroke, pulmonary embolus, deep venous thrombosis or other complications. Even if the surgery and nursing care afterwards were appropriate, in the absence of negligence, there is no guarantee that complications will not occur. In fact, it is clearly stated in informed consent documents that outcomes are not guaranteed and that complications do occur.
Under the best of care, following all applicable standards of nursing and medical care, complications can still happen.
There is no obvious negligent act documented, that can be demonstrated as a clear cause of the injury.
There was no obvious negligent act that could be presented and reasonably understood by the common layperson, without the benefit of expert witness testimony, as a basis of “simple negligence.” The case then would more appropriately be made as medical malpractice and require expert testimony.
It is important to note, that if the case had been filed as a “Medical Malpractice” suit, vs ”Simple Negligence,” it may in fact have proceeded to court. The plaintiff could have found an expert witness to testify that some applicable standards of care “not obvious to a layperson” may not have been followed.
1. 41 NLRR 6 (November 2000)
2. Martin H. Welch, and Kinasewitz, Gary T. (2001). A simple method to assess postoperative risk.(stair-climbing)(Editorial). Findarticles.com. http://www.findarticles.com/cf_dls/m0984/4_120/80157432/p2/article.jhtml?term= (2 January, 2004)
3. InjuryBoard.com. (August 8, 2001). Nursing Home & Elder Abuse Lawsuit Government Report - A Rational Approach to Preventing Falls. http://www.injuryboard.com/view.cfm/Article=674 (2 January 2004)
September 4, 2001, Pathologic Fracture, or Patient Injured in Fall:
August 1, 1999: Nursing Duty To Patient, "Does Not Guarantee" Safety Or Quality Of Care.
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Created on Saturday May 23, 1999
Last updated by Andrew Lopez, RN on March 23, 2017
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