CASE # 1: Patient Falls While Ambulating Post-op, Negligence or Medical

Malpractice

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, based on the facts and circumstances, there was
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.

Case # 2: Patient Left Unrestrained, Patient Injured. Nurses Judgment Call.

Summary: The decision to use or not use restraints must be made with caution and good
judgment. Their intended purpose must be to protect either the patient or others who may
be injured by the patient including the staff caring for the client. The ultimate
determination of necessity is left with the physician. Often, the moment to moment
necessity is determined by the nurse. In this case a nurse did not feel restraining the
patient was necessary. When an injury occurred, the patient sued.

The patient was involved in a motor vehicle accident. A head injury was suffered leaving
him in a state of confusion and prone to agitation.

"Each year, an estimated 2 million people sustain a head injury. About 500,000 to
750,000 head injuries each year are severe enough to require hospitalization. Head injury
is most common among males between the ages of 15-24, but can strike, unexpectedly, at
any age. Many head injuries are mild, and symptoms usually disappear over time with
proper attention. Others are more severe and may result in permanent disability." 2

Following the head injury, the patient was visibly confused and frequently became
agitated. During the course of his admission, an order for "soft" wrist restraints was
obtained and implemented to protect the patient from injury related to mental status
(personality) changes.

"Personality Changes-Apathy and decreased motivation. Emotional liability, irritability,

depression. Disinhibition which may result in temper flare-ups, aggression, cursing,
lowered frustration tolerance, and inappropriate sexual behavior."2

On the day of the incident, the nurse on duty had assessed the patient. In her professional
opinion restraints were not needed.
"What Is Restraint?

"Restraint" is physical force, mechanical devices, chemicals, seclusion, or any other

means which unreasonably limit freedom of movement. Hospital staff may use four types
of restraint to restrict patients who are acting, or threatening to act, in a violent way
towards themselves or others.

Physical restraint--holding a patient for over five minutes in order to prevent freedom of
movement.

Mechanical restraint--using a device, such as 4-point or full sheet restraint, to restrict a

patient's movement (excludes devices prescribed for medical purposes).

Chemical restraint--medicating a patient against her will for the purpose of restraint
rather than treatment.

Seclusion--placing a patient alone in a room so that she cannot see or speak with patients
or staff and the patient cannot leave or believes she cannot leave."3

She based this decision on her observation of the patient's mental, physical state and level
of consciousness. It is common procedure and protocol in facilities for patient's to be
released from restraints when the danger of violence is felt to have passed.

"How Long May Restraint Continue?

When an emergency no longer exists, the patient should be released. Thus, staff should
release a patient who, upon examination, appears calm. The total time which a patient
may be restrained is limited:"3

Later in the shift, the same nurse was helping the patient get up. In the course of this
maneuver, the patient fell and claimed that an injury was sustained.

A lawsuit would be filed against the facility alleging negligence on the part of the nurse.
The patient contended that the removal of the restraints breached standards of care.

In the initial trial, the jury was instructed to view the nurse's role as an "error in
judgement." Based on this and on testimony on the proper use of restraints, standards of
care, the court found for the facility.

The patient appealed.

Questions to be answered:

1. Was the nurse in error to remove the restraints from a patient when she felt they were
no longer needed?
2. Did the removal of the restraints directly contribute to the "injury" that the patient
claimed to sustain?

3. Were the standards of care governing restraint use adequately maintained?

The plaintiff's arguments sought to convince the jury that poor judgment was exercised
by the nurse. It was contended that removal of the restraints and ambulation of the patient
put him in harm's way.

With the patient assessed to be calm, the purpose of the restraints, "to prevent the patient
from harming himself or others," had been achieved.

The purpose of the restraints had not been to "keep the patient from falling out of bed."
The removal of the restraints then, could not be deemed as negligent. There was no duty
of care breached in allowing the calm patient to remain unrestrained.

The order was in place to ambulate the patient when stable. In the nurse's opinion, the
patient was ready. Another nurse may not have agreed with her actions. The patient under
a different nurse's care might have been kept in restraints. A nurse could have "held off"
on the order to ambulate.

There was no causative relationship between removing the restraints and the patient's fall.
In carrying out orders for ambulation, the nurse was providing proper nursing care.

It's not difficult to picture a lone nurse with an unsteady patient losing control and having
the patient slip away. Would this be a breach of duty owed to the patient?

One could argue that the nurse had no business trying to move a patient by herself. One
might also observe the staffing patterns at the time and realize the nurse was doing "the
best she could."

The decision to remove the restraints was clearly a nursing decision. Often the decision to
use them in the first place lies with the nurse too.

This illustrates the leeway and discretion given nurses when carrying out physician's
orders. It also shows the typical catch 22 situation some nurses may find themselves in
regarding restraint use.

"Historically, conventional wisdom supported using physical restraints, including bed

side rails, to "protect and safeguard" residents. Ironically, little documented evidence
exists that restraints prevent falls and risk of injury from falls. Clinical studies
demonstrate that restraints, conversely, in some instances, precipitate or exacerbate fall
risk."4

Both nurses in the above situation would be acting within their scope of practice. Each
would be adhering to standards of care.
For the plaintiff to have a case, it would need to proven that either the removal of the
restraints or the ambulation of the patient was premature.

This was clearly not the case. The actions of the nurse were in good faith and exercised
reasonable concern for the well being of the patient. The fact that the patient suffered a
fall is unfortunate, and reasonably unforeseeable.

It can be compared to the actions of a physician when dealing with an acute patient.
Depending on which course of treatment that physician chooses, the patient might or
might not have a favorable outcome.

In either case, as long as the physician exercises reasonable judgment based on

established principles of practice, a finding of negligence is unlikely.

It has been well established that Medicine is not an exact science. Outcomes are not
guaranteed when prescribing courses of treatment.

They are the result of standard medical practices and individual patient responses. These
responses are not always predictable. Basically, the caregiver can only hope for the best.

The same principle applies to Nursing care. Regardless of how accurate assessments are
and how diligently orders are carried out, patients may or may not experience favorable
outcomes.

When outcomes are unfavorable, it is the constitutional right of the patient or patient's
estate to sue anyone felt to be involved.

The court reviewed the facts of the case and a nursing expert's testimony on restraint use.
The appeals court agreed that standards of care had been maintained.

There exists today intense pressure from family members, governmental agencies and
regulatory agencies to limit restraint use to "only when absolutely necessary." As soon as
they are put in use, the plan of care must include provisions for their removal.

CASE # 3: Sponge Count Off, Patient Develops Sepsis, Surgeon Blames Nurse.

Summary: Sponge Counts are a basic and critical safety measure during a surgical
operation. In this case, the standard three counts were not performed. A sponge was left
in the patient that would later lead to infection. When the issue went to court, the
surgeon claimed "it was not his responsibility" to keep track of the sponges.

The patient was admitted for surgical repair of a hernia. The operation was performed
and the patient returned to the floors without obvious incident.
"A hernia is a weakness or defect in the abdominal wall. It may be present from birth, or
develop over a period of time. If the defect is large enough, abdominal contents such as
the bowels, may protrude through the defect causing a lump or bulge felt by the patient.
Hernias develop at certain sites which have a natural tendency to be weak; the groin,
umbilicus (belly button), and previous surgical incisions."1

Post-operatively, the patient's incision would not heal. It would soon after start to display
signs of active infection.

"Postoperative wound infections have an enormous impact on patients' quality of life and
contribute substantially to the financial cost of patient care. The potential consequences
for patients range from increased pain and care of an open wound to sepsis and even
death. Approximately 1 million patients have such wound infections each year in the
United States, extending the average hospital stay by one week and increasing the cost of
hospitalization by 20 percent."5

In investigating the situation, it would be found that a sponge had been left in the patient
in the Operating Room. The patient sued both the surgeons and the nurses who had
assisted in the procedure.

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