Opinion
No. 12–P–437.
2013-03-13
Arlene NEWMAN, executrix, v. CARITAS GOOD SAMARITAN MEDICAL CENTER.
The plaintiff offered no expert opinion to show that these safety measures were insufficient and constituted, without a bed alarm, a departure from good medical practice.
By the Court (GRASSO, BERRY & KAFKER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Arlene Newman, as executrix of the estate of George S. Newman (decedent), brought an action alleging medical malpractice by the defendant hospital. She claimed that the hospital deactivated the bed alarm at the time of her visit, resulting in the decedent's fall, fracture of his right arm, pain and suffering, and death twenty days later. The medical malpractice tribunal decided that the proposed proof was insufficient to raise a legitimate question of liability. The plaintiff appeals from the judgment dismissing her complaint for failure to post a bond. We affirm.
The hospital is the only defendant in the case.
In April, 2008, the decedent was an eighty-four year old man with a history of hypertension, coronary artery disease, diabetes mellitus, Alzheimer's dementia, colon cancer status postpartial colectomy and colostomy, left hip fracture status posthip replacement, left kidney cancer with nephrectomy, and chronic renal insufficiency. On April 17, 2008, he fell at home. He was brought to the hospital, diagnosed with a pelvic fracture, and admitted. On April 18, 2008, because the decedent was unable to void using a urinal, a Foley catheter was inserted. At 5:00 P.M. on that day, the plaintiff was feeding the decedent supper. Sometime between 5:30 and 5:45 P. M., after the plaintiff left the hospital, the decedent fell as he tried to walk to the bathroom. The fall resulted in the fracture of his right arm. A decision was made not to operate and on April 23, 2008, the decedent was transferred to Bay Pointe Rehabilitation & Skilled Care Center (Bay Pointe). He passed away at Bay Pointe on May 8, 2008.
A plaintiff's offer of proof will prevail before the tribunal (1) if a health care provider-patient relationship is shown, (2) if there is evidence that the health care provider's performance did not conform to good medical practice, and (3) if damage resulted from this failure. See Saunders v. Ready, 68 Mass.App.Ct. 403, 403–404 (2007). An acceptable offer of proof “must comprise more than mere conclusory allegations....” Cooper v. Cooper–Ciccarelli, 77 Mass.App.Ct. 86, 91 (2010), quoting from Booth v. Silva, 36 Mass.App.Ct. 16, 20 (1994).
With respect to the wrongful death claim, where the medical records included in the offer of proof did not state the cause of the decedent's death nor did the offer of proof include an expert opinion stating the cause of death, the plaintiff's allegation that the deactivation of the bed alarm at the time of her visit resulted in the decedent's death is insufficient as to causation. See Keppler v. Tufts, 38 Mass.App.Ct. 587, 590 (1995) (offer of proof insufficient as to causation).
As to the pain and suffering claim, this claim also fails. The offer of proof includes a letter of the hospital's assistant director of claims management, an attorney, who conducted an investigation in response to the plaintiff's claim. Relying on the statement in the letter that the bed alarm was deactivated at the time of the plaintiff's visit, the plaintiff argues that the hospital did not conform to good medical practice when it deactivated the alarm. Assuming, without deciding, that this letter was properly before the tribunal, the deactivation of the alarm does not, in and of itself, show that the hospital did not conform to good medical practice.
The hospital's nursing records indicate that a fall assessment was performed after decedent's admission, that a safety bracelet was applied and bed alarm activated, and that safety checks of the decedent were conducted every fifteen minutes. A post-fall nursing note states, in part, “Safety precautions in place & pt. reminded to stay in bed prior to this.”
In addition to the above evidence of the safety measures, the hospital letter, relied on by both parties, lists other safety measures taken by the hospital:
“The two bed side rails were up, and the bed itself was in the low position. [The decedent's] call bell was in reach, he was provided with green non-skid slippers, and he was at all times assisted with ambulation. His room was across from the nursing station for frequent observation, and he was frequently reminded not to get up without assistance.”
The plaintiff offered no expert opinion to show that these safety measures were insufficient and constituted, without a bed alarm, a departure from good medical practice.
The hospital letter further stated:
“The bed alarm had been activated, but it is normally turned off while family members are visiting, since simple interactions between the patient and visitors can cause the alarm to sound. Just prior to the fall, [the plaintiff] had been visiting [the decedent], and so the alarm had been turned off. When the nursing staff called [the plaintiff] about [the decedent's] fall, [she] expressed regret that she hadn't communicated to the staff that she was leaving.”
The plaintiff offered no expert opinion to show that the hospital did not conform to good medical practice by deactivating the bed alarm in these circumstances.
The plaintiff claims that no expert opinion was necessary in this case. However, the issue which combination of safety measures would need to be applied in these circumstances to constitute good medical practice is not within the common knowledge and experience of the jurors, nor is it within their common knowledge and experience to conclude that deactivating a bed alarm during the plaintiff's visit with the decedent was contrary to good medical practice. See Forlano v. Hughes, 393 Mass. 502, 507 (1984).
The plaintiff relies on Polonsky v. Union Hosp., 11 Mass.App.Ct. 622 (1981), for the proposition that no expert testimony is necessary where the hospital violates its own regulation. In that case, the nurse gave the patient sleep medication and failed to raise the lower side rails, violating the hospital regulation that the side rails should be up at all times except when nursing care is being given. Here, there was no evidence of a hospital regulation that the bed alarm should be on at all times. In fact, the hospital letter suggests the opposite, namely that the bed alarm “is normally turned off while family members are visiting.”
Judgment affirmed.