© 2009 The Medical-Legal News
By Rose Clifford, Editor
In a recent Wisconsin medical malpractice case, a hospital staff nurse could not defend herself with her own charting to prove that she had timely paged a neurosurgeon concerning a patient.
A jury found her 60% at fault under a $1 million award and the trial court found her negligent as a matter of law. However, the plaintiffs’ attorney did not name her in the suit. The plaintiffs were then in the strange position, on an appeal alleging procedural blunders by the trial court, of trying to exonerate the negligent nurse so as to shift all blame to the named parties and thus fatten the award. On top of this, the plaintiffs’ attorney angered the appeals court by sloppy citations to medical records.
In Skrzypchak v. Jensen, 2009 WL 130130 (Wis.App.), plaintiff Dale Skrzypchak showed up at an ER with cauda equina syndrome. CES is a neurosurgical emergency where time is of the essence. The longer surgery is delayed, the more nerve damage can occur.
Skrzypchak was admitted to Wausau Hospital complaining of lower back pain, tingling and trouble urinating. A staff nurse was found negligent “as a matter of law” by the trial court for a failure to report an abnormal medical condition, which is a breach in the standard of care.
The appeals court said, “The undisputed evidence was that… [the nurse]… did not report the abnormal neurological signs she discovered at 4:50 and 8:30 p.m. Experts testified that her failure to contact a physician constituted a breach of the standard of care.”
The nurse insisted that she made proper and timely pages about Skrzypchak to a neurosurgeon as she had been ordered to do, and electronic phone records showed that some pages were made on the hospital floor by someone, but the nurse’s charting did not reflect that she herself made the pages. Thus, the nurse’s lack of charting notes were weighed more heavily than electronic phone records, and the trial court told the jury not to speculate on who made the the pages based only on phone records.
Skrzypchak suffered medical complications that were exacerbated by a delay in his eventual surgery, the delay was attributed to a lack of communication by the nurse and, for want of charting, the lack of communication could not be rebutted.
Poor trial strategy?
The appeals court noted that “The issue of negligence is rarely decided as a matter of law.”
But here, a nurse was found negligent by a directed verdict on uncontested facts and held 60% liable by a jury. However, she luckily was not sued and thus was a nonparty to the action — the plaintiff attorneys had sued only two subcontractor doctors and not the nurse or her hospital employer.
The appeals court said, “At the outset, it is worth noting that the Skrzypchaks’ grievance with the judgment stems from the jury allocating 60% of the causal negligence to [the nurse], an employee of Wausau Hospital. The Skrzypchaks did not sue [the nurse] or Wausau Hospital, and therefore 60% of their damages were uncollectable.”
Cite it right
The plaintiffs’ attorney in the case also was fined $500 for violating the rules of appellate procedure.
The appeals court said: “We note that our task in writing this decision was unnecessarily complicated by the failure of the Skrzypchaks’ attorney… to provide appropriate citations to the record, as required by the rules of appellate procedure.”
“For example, [the attorney] repeatedly cites to trial exhibits 1 through 3, each of which is a binder of medical records. He does not, however, cite to page numbers within those exhibits, even though exhibit 2, for instance, is nearly 600 pages.”
“Failure to follow the rules of appellate procedure is grounds for dismissal of the appeal, summary reversal, striking of a paper, imposition of a penalty or costs on a party or counsel or other action as the court considers appropriate. Here, we deem a sanction of $500 against [the attorney] to be an appropriate penalty for these rule violations….”
Hang on to that evidence, even if it may be damaging Next Post:
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