Metropolitan News-Enterprise


Wednesday, December 23, 2009


Page 3


C.A. Revives Suit by Man Who Fell While Unattended at Hospital


By SHERRI M. OKAMOTO, Staff Writer


The Third District Court of Appeals yesterday revived a Shasta County man’s negligence action against a nurse who had left him unattended on a walker while he was recovering from bifemoral bypass surgery.

Ruling that expert opinion testimony was not required for a jury to resolve the question of whether the nurse’s conduct had fallen short of the reasonable standard of care, the panel reversed Shasta Superior Court Judge Bradley L. Boeckman’s order granting the defense’s motion for nonsuit and dismissing Carl Massey’s claims.

Massey, then 65, was under the post-operative care of nurse Ken O’Bar at Mercy Medical Center Redding in 2006. He had undergone surgery to improve his femoral artery circulation, which involved incisions to his abdomen and groin in order to thread tubes from his heart to his legs.

After the surgery, Massey said his gait was weak and required a walker and a nurse’s assistance when moving.

O’Bar allegedly assisted Massey from his bed and onto the walker but then said he had to go do something and would return shortly.

After waiting about 15 minutes, Massey said he became impatient and attempted to use the walker to get to the bathroom on his own. Massey testified that he lost his balance and fell, sustaining a compression fracture to his back, before crumpling into the floor where he was discovered nearly two hours later.

Massey sued O’Bar and the hospital, asserting the nurse’s negligence had caused his back injury. He later moved to amend his complaint to allege “medical negligence” based on the same evidence, as well as causes of action for battery, fraud and elder abuse.

Boeckman ruled that the issue of O’Bar’s alleged negligence regarding Massey’s fall required expert opinion testimony but found Massey’s expert unqualified on this issue. O’Bar and his employer moved successfully for nonsuit after Massey’s opening statement, and the case was dismissed.

Level of Skill

Writing for the appellate court, Justice M. Kathleen Butz explained that a nurse is negligent if he or she fails to use the level of skill, knowledge and care that a reasonably careful nurse would use in similar circumstances, and that expert opinion testimony is required to prove a nurse did not meet this standard of care except in cases where the negligence would be obvious to a layman.

Butz opined that the alleged negligence in “insufficiently attending to a fall-risk patient who needed assistance to walk short distances with a walker” was “within the sphere of common knowledge,” based on Griffin v. County of Colusa (1941) 44 Cal.App.2d 915—which implicitly applied the common knowledge exception to a situation where a delirious patient fell from a hospital bed after being left unattended by a nurse—and Stevenson v. Alta Bates, Inc. (1937) 20 Cal.App.2d 303—which held that the doctrine applied to a negligence action by a patient recovering from a paralyzing stroke who fell when one of two nurses assisting her walk had released her arm to prepare a chair for her to sit in.

The justice posited that the facts of Massey’s case “display a stronger hold on the common knowledge exception than does Stevenson,” since the patient in that case was able to stand and walk short distances with the assistance of one person and a cane and such assistance being provided at the time of the patient’s fall.

If expert opinion were required to determine whether Massey had the ability to move with the assistance of a walker to and from the bathroom, Butz reasoned that an expert would have been necessary in Stevenson to detail the degree of paralysis of the patient there and its effect on walking assistance, but “that is not what happened.”

“Once the condition of the patient is factually established as helpless or severely disabled—as in Stevenson, Griffin, and here—common knowledge and experience can be used to determine whether the patient fell because she or he was insufficiently attended to by medical personnel,” the justice said.

Additional Claims

While Butz concluded that Massey could pursue his negligence action against O’Bar and the hospital without expert opinion testimony on standard of care and breach, she declined to allow Massey to proceed with his additional claims for battery, fraud and elder abuse.

Each of the proposed causes of action were based on Massey’s allegation that O’Bar administered morphine sulfate to him, without a valid prescription and without informed consent, about four hours after his fall in order to conceal the nurse’s responsibility for his injury.

Butz opined that the trial court had not abused its discretion in denying Massey’s motion as time-barred. She explained that the proposed cause of action for fraud did not toll the statute of limitations and that Massey could not establish concealment, knowledge of falsity or intent to defraud since his fall and subsequent morphine injection were documented on his medical charts. The justice added that the elder abuse claim failed for those same reasons.

Justices Coleman Blease and Vance W. Raye joined Butz in her decision.

The case is Massey v. Mercy Medical Center Redding, 09 S.O.S. 7260.


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