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Dementia patient's unsupervised fall may be basis for ordinary negligence claim

Leonora McIver fell on a wet floor after she was left unattended in a chair in her St. John Macomb Oakland Hospital room.  An MS and dementia patient, she had demonstrated episodic confusion and unsteadiness and her doctors had ordered "acute safety restraints."  The nursing notes showed that throughout her hospitalization, she had repeatedly attempted to leave her bed without assistance. 

She filed a negligence action against the staff who left her inadequately secured, arguing that the injuries she suffered in the fall were the result of negligence in following the doctors' orders.  The Hospital secured the dismissal of her claim by arguing that her claim was one of professional negligence by the nursing staff and that she had not complied with the procedural requirements of the medical malpractice "reform" statutes.  The Court of Appeals panel reversed as to the latter claim, although one judge would not join in the opinion.  There is considerable confusion in the reported cases, with regard to when "ordinary negligence" by hospital staff becomes an exercise of professional judgment and therefore medical malpractice.  The dissenting judge would hold that it is not enough for a staffer to "observe" helplessness or vulnerability; he or she would need a professional license to "diagnose" the cause of vulnerability, and therefore failure to take reasonable precautions should be a malpractice claim.

Thompson O’Neil, P.C.
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