The operation was a success, but the patient died.

ISSUE: In this extraordinary California case, the operation was a success, but the patient died! After undergoing renal surgery, a patient was doing so well that when it was learned that there were no beds available in the hospital’s ICU, an order was issued to transfer the patient to the hospital’s cardiac observation unit. When the patient had a heart attack and died, the issue with which California courts were confronted was whether or not the negligence of the hospital staff and the physicians who ordered the transfer were responsible for the patient’s death. Specifically, the issue before the courts was whether or not the case could be decided on the defendants’ motion for summary judgment.

CASE FACTS: 76-year old Carl Elkins was diagnosed with renal carcinoma and possible lung metastasis and anemia. He was admitted to San Dimas Community Hospital in mid-May 2001 for removal of his right kidney. Surgery was performed on the morning of May 16, 2001, by Dr. Ghassan Roumani. Dr. Hasmuk Joshi was the anesthesiologist. Although surgery was completed without any complications, Dr. Roumani wrote an order for the patient to be placed in the Intensive Care Unit (ICU) following the patient’s initial recovery in the post-anesthesia care unit. However, after being advised that there were no available beds in the ICU, and taking into the account the patient’s apparently stable condition, Dr. Joshi authorized the patient to be transferred from the post-anesthesia unit directly to the cardiac observation unit instead of the ICU. The patient arrived in the cardiac observation unit shortly before noon. Approximately four hours later, the patient’s heart rate dropped dramatically. A code was called. The emergency room physician on duty responded, but was unable to resuscitate the patient. The patient was pronounced dead at 4:28 pm. The cause of death was listed as pulmonary embolism. However, there was a question as to whether the patient died as a result of a heart attack. The patient’s surviving spouse and daughter brought suit against the hospital, Dr. Roumani, and Dr. Joshi asserting that the postoperative transfer of the decedent to the cardiac observation unit (with a patient-to-nurse ratio 6:1) rather than the ICU (with a patient-to-nurse ratio of 2:1) following the surgery failed to meet the applicable standard of care and directly contributed to the patient’s death. The Superior Court, County of Los Angeles, granted the defendants’ motion for summary judgment. The plaintiffs appealed the judgment of the court.

COURT’S OPINION: The Court of Appeal of California reversed the judgment of the lower court and remanded the case to the Superior Court for trial. The court held, inter alia, that the plaintiffs had established an issue of material fact as to causation.

LEGAL COMMENTARY: A motion for summary judgment is properly granted only after “all the [evidence] submitted show[s] that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” An Appellate Court reviews the granting of summary judgment de novo and independently decides whether the facts do or do not present a triable issue of fact warranting a trial as a matter of law. The court observed that although one of the expert witnesses stated that he could not be certain that the patient died from a heart attack, neither the hospital nor Dr. Joshi presented any evidence that the plaintiffs did not possess and could not reasonable obtain evidence that the negligence of the hospital and the anesthesiologist, was a significant factor in causing the patient’s death. Accordingly, the court concluded that the defendants failed to meet their burden to show that the plaintiffs could not establish the required elements of their negligence claim. The court observed that even it were to agree that the defendants’ prima facie showing was sufficient to shift the burden to the plaintiff on summary judgment, the trial court erred in concluding that the plaintiff’s expert medical witnesses’s deposition testimony failed to create a triable issue of fact as to causation. The court noted that plaintiffs’ expert witness testified that the patient died as a result of a heart attack and that, to a reasonable medical probability, he would not have suffered the fatal heart attack if he had been in the ICU rather than in the direct observation unit. Early detection would have allowed for diagnoses and treatment. The court observed that while the plaintiffs’ expert initially testified that he could not state to a reasonable degree of medical probability that the patient died as a result of a heart attack, he later testified, “I would say that of all the possible reasons for his death, including pulmonary embolism, and stroke, and heart attack, that most likely with the most probability, is heart attack.” The court noted that the plaintiffs’ expert, on cross-examination by the defendants’ attorney concluded that “… to a reasonable medical probability, it was a myocardial infraction [heart attack].” Thus, the case could not be decided on a motion for summary judgment.

Nurse, subject to seizures, ordered to report ‘right away’.

ISSUE: Ordinarily, an employer is not liable for injuries sustained by an employee going to work. There are exceptions, including, inter alia, those that occur on the employer’s premises. In the extraordinary fact situation in this Florida case, a nurse was known by her employer to have a seizure disorder. She was usually accommodated by the hospital in terms of its reimbursing her for the expenses she incurred in getting to and from work due to the foreseeability of that she might have a seizure if she had to drive herself to work when “on call.” However, on one occasion, after calling in sick, she was ordered to report to work on her regular shift “right away.” Despite her reasons for being unable to report, which included, inter alia, the fact that she had a severe headache, which was often the percussor of seizure, the nurse was ordered to report “right away.” While driving to work at the hospital, she was involved in a serious motor vehicle accident.

CASE FACTS: Tracey Hernandez was employed by Tallahassee Medical Center, Inc., d/b/a Tallahassee Community Hospital, as a surgical nurse. During the course of her employment, she suffered from epileptic-seizure disorder about which the hospital was aware. Her treating neurologist had informed the hospital that the nurse should not drive to work, either while on call or on regularly scheduled shifts. The hospital was also aware that the nurse “had a difficult time getting to the hospital quickly because she was a single mother and had to take her child to daycare before coming to the hospital.” In order to accommodate her condition, the hospital instructed the nurse that she should obtain taxi service to and from work, while she was “on-call” and that the hospital would reimburse her for the expense incurred. However, the hospital informed the nurse that her job was in jeopardy because of the time she missed from work, and that it was her responsibility to work “on-call” and to arrive at work on time. The hospital did not provide the nurse with reimbursement for taxi service to and from the hospital on her regularly scheduled work days. On July 23, 2002, Nurse Hernandez called in sick explaining that she was suffering from a headache and had other symptoms, which she believed to be consistent with an impending seizure. Notwithstanding Nurse Hernandez’ request to be excused from work that day, the hospital ordered her to be at work “right away,” although, it was known that she had to take her daughter to daycare and would likely have to drive herself. In compliance with her employer’s instructions, Nurse Hernandez proceeded to drive herself to work, suffered a seizure, lost control of her car, and suffered serious and permanent injuries. The Circuit Court, Leon County, dismissed Nurse Hernandez’ complaint. The nurse appealed.

COURT’S OPINION: The District Court of Appeal of Florida affirmed the judgment of the lower court. The court held, inter alia, that in order to successfully prove a cause of action for alleged intentional infliction of emotional distress, the conduct necessary to sustain such a claim must be “so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency.” Accordingly, the court concluded that the hospital’s directions to its employee that she report to work “right away” did not exceed the bounds of decency. The plaintiff’s theory of liability was founded primarily upon the following rule of law, which was approved in Florida: “Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed on the defendant either to lessen the risk or see to it that sufficient precautions are taken to protect others from the harm that the risk poses.” The hospital should have reasonably foreseen that if the plaintiff complied with the order to come to work immediately, she would be required to drive herself and risk having a seizure together with the foreseeable consequences. However, the court concluded that “a legal duty is not established by evidence of the foreseeability alone.”

LEGAL COMMENTARY: The court indicated that in the absence of any special relationship between the nurse and the hospital, the court would ordinarily consider the case to be an open and shut suit in favor of the hospital. Thus, the court’s position was that if there were no such relationship, the hospital’s direction to the nurse to come to work “right away” could not be said to have created any foreseeable zone of risk of harm to the nurse. The court noted that under such circumstances, even if the nurse had chosen to follow the request and as a consequence was injured, her injuries could not be said to be caused by a breach of duty because the hospital was not in the position to control the risks to which the nurse would be exposed in travelling to work “right away.” Although, the court recognized that the complaint in the case clearly alleged the existence of a special relationship, the fact that the court had to answer the essential question whether the hospital’s conduct, by reason of that special relationship created a foreseeable zone of risk thereby gave rise to a duty the hospital owed to its employee to avert the threat of harm. The court concluded that it did not!

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law’s, Nursing Law’s & Hospitals Law’s Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell’s Bar Register of Preeminent Lawyers, Marquis Who’s Who in American Law, and Who’s Who in America.