Virginia Lawyers Weekly VA Lawyers Weekly
An 81-year-old total hip replacement patient fell while undergoing in-patient treatment at Riverside Hospital, fracturing her femur and hitting head. Twenty hours later, plaintiff suffered a mild cerebral stroke, which extended during orthopedic surgical repair under general anesthesia, causing permanent hemiplegia.
Riverside had previously assessed the plaintiff as a high fall risk, but failed to activate the bed alarm or move her closer to a nurse station. Plaintiff later became an extreme fall risk, after pulling out her IV and repeatedly attempting to get out of bed; but Riverside did not use soft (posey or wrist) restraint, a sitter, a bed alarm or relocation. Immediately after plaintiff’s fall, Riverside restrained her for five days. Four incident reports indicated the lack of fall risk precautions and patient’s risky mental status. The chart was contradictory.
Riverside’s defense contested standard of care and fall causation of stroke/hemiparesis. Expert disclosures began 120 days rather than the standard 90 days before trial. Three final pre-trial conference sessions adjudicated numerous motions in limine.
By trial, the plaintiff was 87 years old. She attended sporadically and testified about losing her mobility and activity, having to sell her home and becoming institutionalized. Plaintiff established standard of care independently with Virginia and Massachusetts nurses. Riverside controverted with a nurse who admitted MCV used restraints, sitters and bed alarms for years, but claimed there were no bed alarms in the orthopedic unit.
As corroboration in rebuttal, plaintiff introduced Riverside nursing school and hospital teaching materials regarding restraints and bed alarms. The court’s exclusion of Riverside restraint policy and fall protocol as corroboration (and Riverside risk manager’s write-off of the plaintiff’s bill as admission/statement against interest by “consciousness of guilt” conduct) preserved for “first impression” appeal, along with other points.
Plaintiff called 43 witnesses, mostly Riverside personnel and eight retained experts (two nurses, two neuroradiologists, two orthopedic surgeons, an anesthesiologist and a neurologist). Riverside named eight experts, but called only two.
Riverside used monitors to share information with the jury. Plaintiff mostly used old-school poster boards supplemented by monitors. Plaintiff’s counsel displayed images the brain injury using “cutting-edge” 3.0 Tesla Magnetic Resonance Imaging, applying “fractional anisotropy,” also known as Diffusion Tensor Imaging, and NeuroQuant Analysis.
The jury unanimously decided against Riverside on initial headcount and returned a $3,500,000 award in less than three hours after a two-week trial, basing vicarious liability on three unnamed nurses. It let off the only nurse named in the suit.
Post-trial, plaintiff moved to reduce the award to the $1,800,000 cap, for $4,533.65 court costs, and for $1,900,000 appeal bond. All of plaintiff’s motions were granted. Riverside’s motion to set aside the verdict was denied.
It is unknown at this time whether Riverside will appeal. Plaintiff is poised to cross-appeal.
Related news story: A return to ‘Riverside’
[13-T-002]Type of action: Medical malpractice – hospital in-patient fall
Injuries alleged: Fractured femur and head injury leading to mild cerebral stroke, causing permanent hemiplegia
Name of case: Burrell v. Riverside Hospital, Inc., et al.
Court: Newport News Circuit Court
Case no.: CL1101633F-15
Tried before: Jury
Judge: Timothy S. Fisher
Date: Dec. 7, 2012
Special damages: $62,000 – medical expenses
Verdict or settlement: Verdict
Amount: $3,500,000
Attorney for plaintiff: Avery “Sandy” T. Waterman Jr., Newport News
Attorney for defendants: Kelvin L. Newsome, Norfolk
Insurance carrier: Self-insured
