Medical center guidelines often form the central legal battleground in cases against hospitals. The defense will use compliance with the guidelines as proof that treatment met appropriate standards, while the plaintiff must show the hospital violated its own protocol or those guidelines didn’t apply. In 2017, Gordon & Doner's Scott Fischer secured a nearly $1 million verdict in a patient fall trial with a closing that hammered the hospital's safety protocol. Harrison v. West Boca Medical Center.
Dolores Moore broke her leg in a late-night fall while being treated for a sodium deficiency at Boca Raton, Florida’s West Boca Medical Center. The break required orthopedic surgery and a 48-day nursing home stay.
Moore claimed she fell because the hospital failed to use more than two bed guardrails, leaving her to tumble from the bed when she awakened late at night and searched for the nurse-call button in the darkened room.
The defense countered that hospital staff followed appropriate procedures in minimizing the chances Moore would fall, arguing they had Moore sign safety forms, regularly assessed her mental condition, and tagged her as a fall risk by marking her records.
In his closing argument, Fischer contended the hospital’s care for Moore’s safety amounted to “form over substance.”
“While [Moore] is laying there on an IV with the dizziness from the hyponatremia, [a nurse gives] her a form that says ‘Hey, be careful and try not to fall out of bed. Can you initial this please?’” Fischer told jurors. “That’s form over substance. That doesn’t stop Dolores Moore from falling out of bed, to have her initial a piece of paper.”
And the fall-risk sticker on Moore’s records? Fischer argued that without more, the sticker was useless. “They put a nice yellow sticker on her chart,” Fischer said. “A sticker on a piece of paper is not going to stop Dolores Moore from falling out of bed.”
The substance that was lacking, Fischer said, included a better lit room, and perhaps most importantly, a raised third bed rail. “The lower side rail on the side of the bed where the call button was absolutely should have been up, no questions asked,” Fischer said, pointing out that Moore’s chart indicated 2-3 bed rails should be raised for Moore. “In and of itself, that is negligence.”
Fischer noted Moore had no desire to get out of bed, making the lowered third rail useless, even if she was not a fall risk. “There was no benefit whatsoever to Dolores Moore to have that third side rail down,” Fischer said. “But it obviously was incredibly important to protect her, and they didn’t do it.”
Fischer added that even hospital staff were at a loss as to why the third rail was not raised. “You saw I asked the aide and the nurse on this [witness] stand, why wasn’t that third side rail up? And what’d they both say? ‘I don’t know,’” Fischer said, mimicking the witnesses as he shrugged.
Fischer’s form-over-substance theme helped deliver a $909,000 verdict in the case.
Email Arlin Crisco at acrisco@cvn.com.
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