Proving Medical Negligence
by: Jon Corr and Sara Sayles
Generally, negligence is the failure to exercise the care that a reasonable person would exercise under similar circumstances. In the medical context, a health care provider is negligent if he or she did not comply with the standard of care, or did not use the "reasonable degree of knowledge and skill ordinarily possessed by other members of his profession in similar circumstances" in the provider's treatment of a patient. To prevail in a case alleging medical negligence against a nurse, a plaintiff must provide expert testimony that the nurse's actions fell below the standard of care and, therefore, that he or she was negligent. However, expert testimony is not required to prove negligence of a nurse where the nurse's negligence would be obvious to laymen.
In a recently published case, Massey v. Mercy Medical Center Redding, the Third District California Court of Appeals held that expert testimony may not be required to prove a case of negligence against a nurse for failing to guard against the fall of a patient identified as a fall risk. ((2009) 180 Cal.App.4th 690.) In Massey, plaintiff Carl Massey, age 65, underwent bi-femoral bypass surgery. After the procedure, nurses caring for him noted that he was a substantial fall risk and implemented a fall protocol including use of walker and stand-by assistance. Three days after his surgery, plaintiff used his call light to summon a nurse to help him go to the bathroom. A nurse arrived, assisted him to a walker, and then told plaintiff he would be right back. After waiting for 15 minutes, plaintiff tried to use the walker without assistance, fell, and suffered a compression fracture to his back.
Plaintiff sued the nurse and his employer, Mercy Medical Center, for medical negligence. The trial court found that plaintiff's expert was unqualified to testify. Following opening statement by plaintiff's counsel, defendants moved for nonsuit on the grounds that without an expert, plaintiff could not prove the nurse's alleged negligence. The motion was granted and the case was dismissed.
Plaintiff appealed on the grounds that the trial court erroneously required expert testimony to establish the nurse's negligence. Defendants argued that an expert opinion was required to determine whether plaintiff had the ability to be out of bed, to independently use a walker, and whether he required constant assistance to use the walker.
To reach its decision, the Court of Appeal reviewed the facts: nurses caring for plaintiff noted the plaintiff to be a fall risk and implemented a fall prevention protocol where plaintiff was to use a walker and needed assistance to ambulate. Plaintiff fell when he attempted to use the walker without assistance. After reviewing the facts, the Court concluded the fall in this case was similar to the case of Stevenson v. Alta Bates, Inc. where a patient recovering from a paralyzing stroke to her left side was being assisted in walking by a nurse on each side and fell when the left sided nurse released the patient's arm to prepare the chair for the patient to sit. ((1937) 20 Cal.App.2d 303.) On these facts, the Stevenson Court concluded that the application of the common knowledge exception was "well founded." (Id.)
The Massey Court followed the ruling in Stevenson and concluded that, because the nurse was performing a routine, non-technical task of assisting a fall-risk patient to the bathroom, plaintiff could pursue his negligence action against defendants without expert opinion testimony on the standard of care and breach. The judgment of the trial court was reversed, and plaintiff was awarded his costs on appeal.
Under the ruling in Massey, a plaintiff patient can may pursue a medical negligence suit based on insufficient attendance by nursing staff without using expert testimony. This ruling, therefore, makes it easier for patient plaintiffs who have fallen to prove cases of medical negligence. Additionally, because expert testimony may not be required in fall cases, plaintiffs in such cases could potentially make the argument that theirs is a case of general rather than medical negligence, and therefore, that the provisions of the Medical Injury Compensation Reform Act (MICRA) do not apply. The California Supreme Court addressed the general versus medical negligence issue in Flowers v. Torrance Memorial Hospital Medical Center and held that, with respect to substantive law, medical and general negligence constituted one cause of action and only altered the standard of care applicable to the care provider's actions. ((1994) 8 Cal.4th 992.) However, the Court declined to address the potential statutory ramifications in a case where the care provider's actions are analyzed under a general, rather than a professional, standard of care. If you have questions regarding how the Massey decision may affect your organization, contact our office at any time. For clients looking for experienced litigation counsel, Porter Scott is the clear choice.