Virginia: Patient Falls – a Lawyer’s Holiday

Virginia: Patient Falls – a Lawyer’s Holiday

On November 12, 15 and 19, 2012, first, second and third Final Pre-Trial Conferences were held in Shirley Frazier Burrell v. Riverside Hospital Inc., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia. That lawsuit arising from a serious patient fall in 2006 finally will be tried before a jury during November 26-December 7, 2012.

At first FPTC on November 12th, the Court among other things ruled that Defendants’ expert, Nurse Willersdorf, could testify about bed alarms even though she asserts not having used any within a year of the medical malpractice alleged in Burrell. Much more significantly, the Court in Burrell followed the Virginia Supreme Court’s landmark opinion in Riverside Hospital, Inc. v. Johnson, 262 Va. 518 (2006) (“Riverside I”) and denied Defendant Riverside’s motion to exclude the “factual information of patient care” that it segregated from the patient chart in its claimed “peer review” records, including Plaintiff’s Exhibit No. 3 2/17/06 Midas “Unwitnessed Fall” Incident Report and 3/14/06 Midas “Additional Surgery” Incident Report; Plaintiff’s Exhibit No. 4, 2/16/06 Falls Abstraction Data Tool; Plaintiff’s Exhibit No. 11, 2/17/06 Procedures/ Practices Quality Care Control Report (“QCCR”); and Plaintiff’s Exhibit 30, 3/7/08 #67606 Summary Report Quality Management System (“QMS”) Printout, 6/28/06 #460610 Surgical Quality Patient Care (“QPC”) Committee Minutes, and 9/27/06 #460610 Surgical Quality Patient Care (“QPC”) Committee Minutes.

At second FPTC on November 15th, the Court in Burrell again followed the Riverside I patient fall case, overruled Riversides motion to exclude, and ruled that Plaintiff was entitled to introduce as “corroboration” of her nursing experts’ opinions that independently establish the prevailing “standard of care” (“SOC”) various materials taught to nursing students at Riverside’s own School of Health Careers, in addition to materials taught to nurses by Riverside in its hospital orientations, skills fairs, in-services, computer-based learning (“CBL”) and/or preceptorships. Those Riverside materials include, but are not limited to, Plaintiff Exhibit No. 39, 2003 nursing textbook from Riverside’s own School of Practical Nursing (L.P.N); Plaintiff’s Exhibit No. 47, 2003 nursing textbook from its own School of Professional Nursing (R.N.); Plaintiff’s Exhibit No. 33, JCAHO Prep 2004 CBL; Plaintiff Exhibit No. 36, Riverside’s “Patient Restraints,” CBL and; Plaintiff Exhibit No. 38, Riverside’s “Patient Safety Goals 2006”.

Additionally, the Court in the Burrell medical malpractice lawsuit yet again followed Riverside I, in which a Newport News jury awarded $1,600,000.00, overruled Riverside’s motion to exclude, and ruled Plaintiff also was entitled to introduce as “corroboration” of her independently-established nursing SOC opinions 3 hospital-wide policies of Riverside, 1 of which included a hospital-wide protocol. Those Riverside policies in Burrell are Plaintiff’s Exhibit 17, 4/04 Policy #01-01 “Patient Care Documentation”; Plaintiff’s Exhibit 18, 7/19/04 Policy #235 “Restraint Seclusion”; and Plaintiff’s Exhibit 19, 8/05 Policy #231 “Fall Prevention,” which includes “Risk Assessment” and “Precaution Protocol”.

Moreover, the Court in Burrell once again followed Riverside I, overruled Riverside’s motion to exclude, and held Plaintiff was entitled to introduce inter alia the incident report and Risk Manager’s testimony from Riverside I as “notice,” if improbably Plaintiff’s claim for punitive damages survives in Burrell; provided, however, that Plaintiff cannot mention punitive damages in opening, and any punitive damages evidence will not be admitted until after Plaintiff’s nursing SOC experts have testified. Plaintiff’s nursing expert testimony in Burrell is expected to be that Defendants’ alleged medical malpractice of not using a bed alarm, a sitter and/or soft restraints for the safety protection of high fall risk patient was a “wide deviation” from Virginia’s SOC, that it was “blatant” and a “no-brainer”.

Further, Riverside in Burrell was unsuccessful in trying to exclude substantial testimony of 5 Plaintiff retained experts. With little or no change, however, Nurse Cheeley of Chesterfield, Dr. Trieshmann of Hampton VA, Dr. Evans of UVA, Nurse Levin of Mass General, and Dr. Parvizi of Rothman Institute are permitted to testify at the Burrell patient fall trial as they had in their depositions.

Finally, at third FTCP on November 19th, in response to Riverside seeking “clarification” of the prior week’s medical malpractice rulings, the Court in Burrell reiterated the admissibility of Riverside’s 3 policies as “corroboration” and, subject to Plaintiff presenting a prima facie case of punitive damages, of Riverside I evidence as “notice” to Riverside. Notably the Court accepted the parties’ stipulation admitting cutting-edge NeuroQuant Analysis into evidence.

Tayloe Associates of Norfolk, Virginia ( reported all 3 Final Pre-Trial Conference, plus other aspects of this patient fall case. Happy Thanksgiving!