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Wierzbicki v. United States

United States District Court, Eighth Circuit

April 4, 2013

HONORA WIERZBICKI, as the Special Administer of the Estate of Mary Josephine Jones, Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant.

OPINION AND ORDER DENYING SUMMARY JUDGMENT, PARTIAL SUMMARY JUDGMENT, AND MOTION TO STRIKE

ROBERTO A. LANGE, District Judge.

Plaintiff Honora Wierzbicki ("Wierzbicki" or "Plaintiff") filed a Complaint, as the Special Administrator of the Estate of her mother Mary Josephine Jones ("Jones") under the Federal Tort Claims Act, 28 U.S.C. § 1346, alleging that Defendant United States Government ("the Government") was negligent in its care for Jones while Jones was a patient at the Indian Health Services Medical Center at Rosebud, South Dakota. Doc. 1. Wierzbicki alleges that Jones was not properly supervised, fell while unattended, and sustained a head injury that ultimately led to her death. Doc. 1. The Government filed a Motion for Summary Judgment, Doc. 12, arguing that Jones is barred from recovery under the doctrines of assumption of the risk and contributory negligence or, alternatively, that the Government was not negligent. Wierzbicki opposed the Government's motion, Doc. 22, and filed her own Motion for Partial Summary Judgment, Doc. 18, arguing that the Government was negligent as a matter of law for failing to observe policies and procedures to prevent Jones from falling. Accompanying Wierzbicki's final responsive pleading was an affidavit of Charlotte Sheppard, Wierzbicki's previously disclosed expert. Doc. 34-2. The Government filed a Motion to Strike Affidavit of Charlotte Sheppard, Doc. 36, which Wierzbicki opposed, Doc. 38.

I. Facts Not in Genuine Dispute

The Government under Local Rule 56.1 filed a Statement of Undisputed Material Facts along with its Motion for Summary Judgment. Doc. 14. Wierzbicki under Local Rule 56.1 filed Plaintiffs Responses to United States' Statement of Undisputed Material Facts. Doc. 24. Wierzbicki, likewise, under Local Rule 56.1 filed her Statement of Undisputed Material Facts, Doc. 21, along with her Motion for Partial Summary Judgment. The Government then filed United States' Response to Plaintiff's Statement of Undisputed Material Facts. Doc. 27. Wierzbicki also filed a Statement of Material Facts Still in Dispute, Doc. 25, to which the Government replied, Doc. 31. The facts not in genuine dispute primarily are taken from these documents.

A. Hospital Visit

Wierzbicki is the daughter of Mary Josephine Jones. Doc. 24 at ¶ 2. For the last approximately forty to forty-five years of her life, Jones lived in Rosebud or Mission, South Dakota. Doc. 24 at ¶ 3. Jones, who was 87 years old in 2009, suffered from severe heart problems for which she was taking multiple medications. Doc. 24 at ¶¶ 2, 4. On October 17, 2009, Jones arrived by ambulance at the emergency room at the Indian Health Services Rosebud Comprehensive Health Care Facility ("Rosebud IHS"), which is operated by the Government. Doc. 24 at ¶¶ 1, 7. Jones told the intake nurse that she was dizzy and had fallen four times at her home. Doc. 24 at ¶¶ 8, 22. Dr. John T. Benson, Jones' emergency room physician, felt that Jones' age combined with her medical history-conditions including diabetes, atrial fibrillation, endocarditas, high cholesterol, and high blood pressure-put her health generally at risk. Doc. 24 at ¶ 9. Dr. Benson ordered a battery of tests in an attempt to diagnose the cause of Jones' dizziness. Doc. 24 at ¶¶ 10-14. Ultimately, nothing in the tests indicated any specific acute problems, but Jones was admitted to the hospital because of her dizziness and lack of coordination while walking. Doc. 24 at ¶¶ 14, 17, 18. The admitting nurse, Ruth Heinert, concluded that Jones was a patient at risk for falls and determined that Rosebud IHS's fall precaution policies would be implemented for Jones' hospitalization. Doc. 24 at ¶ 24; Doc. 27 at ¶ 1.

B. The Fall Precaution Policy

Rosebud IHS has policies specifying certain protections for an admitted patient deemed at a high risk for falls. Although the parties dispute which of two different policies was in effect during Jones' stay in October 2009, see Doc. 24 at ¶ 28-29; Doc. 27 at ¶ 12, the record reveals that this is not a genuine dispute.

In August 2005, Rosebud IHS implemented a fall precaution policy ("the August 2005 Policy").[1] Doc. 24 at ¶ 28. In 2009, Rosebud IHS changed its nursing policies, including its fall precaution policy, from the August 2005 Policy to the policies contained in the nursing procedural textbook Lippenscott's Nursing Procedures ("Lippenscott's"). Doc. 24 at ¶ 29. The Government contends that Rosebud IHS adopted Lippenscott's in May of 2009, to supplant and displace the August 2005 Policy. Doc. 24 at ¶ 29; Doc. 27 at ¶ 2. To support this conclusion, the Government produced two documents: (I) a Rosebud IHS policy memorandum that indicates that in May 2009, Rosebud IHS began directing nurses to consult Lippenscott's "for bedside care, equipment, nursing alerts, complications and documentation, " Doc. 28-1; Doc. 27 at ¶ 12; and (2) notes from a May 27, 2009 nursing staff meeting that stated under the "New Business" section that "Procedure Book: Lippenscott's 2009 Procedure Book will be available in the Inpt, OPD, ER units for use as A reference guide." Doc. 28-1; Doc. 27 at ¶ 2. The Government also noted that at Rosebud IHS Director of Nursing Carol King's 2012 deposition she stated that she thought that the new policy contained in Lippenscott's would have been in place during Jones stay. See Doc. 32 at 8; Doc. 28-3 at 8-9. The only evidence Wierzbicki presented to assert that a genuine dispute of material fact exists regarding which policy was in place in October 2009 was King's deposition testimony that she could not remember with certainty exactly when in 2009 the fall prevention policy contained in Lippenscott's replaced the August 2005 Policy. See Doc. 24 at ¶ 29; Doc. 28-3 at 8-9. The fact that King, three years after the fact, could not remember when in 2009 the policy changed does not give rise to a genuine dispute of fact. The Government's records establish that the policy change occurred in May 2009, before Jones' hospitalization.

The fall prevention policy in the August 2005 Policy differs from the fall prevention policy articulated in Lippenscott's. The August 2005 Policy as amended in December 2006 required, among other precautions, that a bed alarm be turned on for any patient considered at high risk of falling.[2] Doc. 24 at ¶ 28. A bed alarm is a device that notifies the nurses whenever a patient gets out of bed. Doc. 24 at ¶ 53. Lippenscott's, however, does not require bed alarms. Doc. 24 at ¶ 30. Lippenscott's "Preventing falls" section mentions certain techniques that should be employed including safety devices such as call bells, lowered beds with locked wheels, and side rails that are raised. Doc. 24 at ¶ 30. Although Lippenscott's does not require bed alarms as part of its fall precaution policy, it does mention that patients receive "advice on assistive devices" and it references recommendations from the Centers for Disease Control and Prevention for preventing falls in elderly patients that include "the use of technological devices, such as alarm systems, that are activated when patients get out of bed." Doc. 24 at ¶ 31; Doc. 16-7 at 5-6.

Rosebud IHS had bed alarms in October 2009. Doc. 27 at ¶ 3; Doc. 24 at ¶ 32. But these bed alarms were not working in October 2009, and had not been in working condition for at least a year prior to Jones' stay. Doc. 27 at ¶ 3; Doc. 24 at ¶ 32. Although Rosebud IHS staff had alerted Rosebud IHS management on more than one occasion that the bed alarms were inoperable, the bed alarms remained inoperable in October 2009, so no bed or mobility alarms were used as a fall precaution during Jones' hospitalization. Doc. 27 at ¶¶ 2, 4; Doc. 24 at ¶ 27. Other fall precaution procedures, however, were in place at Rosebud IHS. Jones bed was placed in its lowest position, she was placed in a room visible from the nurses station, her call light was within her reach, and her bed rails raised. Doc. 24 at ¶¶ 25, 67, 70, 72.

C. The Fall

On October 19, 2009, Dr. Soon Kim notified Jones that she was to be discharged. Doc. 24 at ¶ 40. Jones was sent to Physical Therapist Amy Reindl to be trained on how to use a walker. Doc. 24 at ¶¶ 40-44. With Reindle, Jones stumbled several times when trying to walk without help and Jones could not maintain her balance while standing. Doc. 24 at ¶¶ 44-45. Jones performed better once she began using a walker. Doc. 24 at ¶ 46. Based on Reindle's assessment, coupled with the fact that Jones lived alone, Jones' discharge was placed on hold so that Social Services could be contacted regarding possible nursing home placement for Jones. Doc. 24 at ¶¶ 47-48, 58.

Wanblee Win Guerue, the Social Services representative at Rosebud IHS in charge of nursing home placement, met with Jones on October 19, 2009, to tell Jones that she would be placed at a White River, South Dakota nursing home on Monday, October 26, 2009. Doc. 24 at ¶¶ 62-64. Guerue recalled that Jones was alert and talkative and that Jones recognized the danger of continuing to live alone with her condition. Doc. ¶¶ 24 at 62-66. Jones reportedly told Guerue that she was afraid to go home because she could kill herself from one of her falls. Doc. 24 at ¶ 63.

On October 20, 2009, physical therapist Reindl observed that Jones' balance had improved and that she could get in and out of bed, move from sitting to standing without trouble, and had no trouble with her mental cognitive functioning. Doc. at ¶¶ 24 at ¶¶ 49-53. Jones performed a "toilet transfer" and walked 100 feet using her walker without losing balance. Doc. 24 at ¶ 51. However, because of Jones' continued dizziness, Reindl recommended Jones not get out of bed or use the restroom alone. Doc. 24 at ¶ 51.

On October 21, 2009, Monica Pochop served as Jones' day shift nurse. Doc. 24 at ¶ 60. Nurse Pochop reported that Jones was alert, oriented, and used her call light when she needed to leave her bed. Doc. 24 at ¶¶ 60-61. Nurse Pochop took Jones to the bathroom at 6:00 p.m. on October 21; Jones' gait was steady and Jones felt better and not dizzy at the time. Doc. 24 at ¶ 67.

Nurse Bonnie Wescott oversaw Jones during the overnight shift starting in the evening of October 21 and continuing until the morning of October 22. Doc. 24 at ¶ 69. Wescott described a typical encounter with Jones as follows: Jones would use her call light, Nurse Wescott would go into Jones' room to help her sit up if Jones was not already sitting up, and the pair would walk to the bathroom and then back to Jones' bed where Nurse Wescott would get her settled. Doc. 24 at ¶ 71. At 4:00 a.m. on October 22, Wescott followed this routine to help Jones use the restroom. Jones used her walker, her gait was steady, and she was oriented to person, place, and time. Doc. 24 at ¶ 72; Doc. 16-1 at 28 (noting in the "0400" visit, under "Verbal/Oriented" column Jones was "OX3"). After Jones was settled in her bed, Nurse Wescott put the bed rail up and left the room. Doc. 24 at ¶¶ 72-73. Nurse Wescott then took her break. Doc. 24 at ¶ 73.

Nurse Crystal Shields was sitting at the nurses station on the morning of October 22, 2009. Doc. 24 at ¶ 76. At about 4:10 a.m., after Nurse Wescott left the room and headed out for her break, Nurse Shields heard something that sounded like something had fallen in one of the rooms. Doc. 24 at ¶¶ 76, 82. Nurse Shields went into Jones' room from which the sound arose and found Jones lying on the bathroom floor. Doc. 24 at ¶ 78. Shields recalled that she did not need to shut off a call light or bed alarm. Doc. 24 at ¶¶ 75-76, 79.

Nurse Wescott returned from her break and assisted Nurse Shields in examining Jones. Jones had some abrasions and a contusion to the left side of her forehead, so the nurses called Dr. Benson, the emergency room doctor on site who had treated Jones earlier in the week. Doc. 24 at ¶¶ 74-81, 83. Dr. Benson noted that Jones was "fairly normal" and stable, knew where she was and what happened, and could indicate where she was feeling pain. Doc. 24 at ¶¶ 84, 86, 88. Jones told Dr. Benson that she remembered standing up, getting dizzy, and falling. Doc. 24 at ¶ 85. Dr. Benson ordered a number of x-rays and a CT scan of Jones' head. Doc. 24 at ¶ 87.

After Jones returned from having x-rays and a CT scan, her condition deteriorated. Doc. 24 at ¶¶ 90-91. She began sweating profusely and was checked into the emergency room at 6:15 a.m., two hours after she had fallen. Doc. 24 at ¶¶ 90-92. Once in the emergency room, her condition continued to worsen. She was in severe distress and became lethargic and then comatose. Doc. 24 at ¶¶ 91-92. The results of the CT scan came back at this point and showed that Jones was bleeding in her brain. Doc. 24 at ¶ 94. Because Jones was taking a prescription blood thinner, the bleeding in her brain occurred at a higher rate than normal, which exacerbated her subdural hematoma. Doc. 25 at ¶ 96. Dr. Benson called a neurosurgeon in Sioux Falls, South Dakota, by that point having done all that could be done for Jones at Rosebud IHS. Doc. 24 at ¶¶ 94-96. At 9:12 a.m., on October 22, 2012, Jones was transferred to Sanford Hospital in Sioux Falls. Doc. 24 at 97. Jones passed away the next day, October 23, 2009, at Sanford Hospital as a result of the subdural hematoma she sustained in her fall. Doc. 24 at ¶ 98.

D. Procedural Facts

Wierzbicki, as special administer of Jones' estate, filed this Complaint on October 3, 2011. Doc. 1. This Court issued an Amended Rule 16 Scheduling Order, ordering that the "identity of and reports from retained experts under Rule 26(a)(2) of the Federal Rules of Civil Procedure shall be due from Plaintiff by August 13, 2012." Doc. 11. The Amended Scheduling Order required that the expert reports comply with Rule 26 and contain "[a] complete statement of all opinions to be expressed and the basis and reasons therefore" and "[t]he data or other information considered by the witness in forming the opinions." Doc. 11.

Wierzbicki designated Charlotte Sheppard as her expert witness and disclosed her report to the Government on August 13, 2012. Doc. 38-1; Doc. 38-2. Sheppard's initial expert report was a two-page letter and was very terse and conclusory in asserting that nursing staff and management at Rosebud IHS allegedly breached the standard of care. Doc. 19-8; Doc. 38-3. The Government within a week of receiving Sheppard's letter advised Wierzbicki's counsel that the disclosure was incomplete under Rule 26(a)(2)(B). Doc. 38-2. Wierzbicki then provided some additional biographical information about Sheppard, but did not augment the disclosure of Sheppard's opinion at that point. The Government chose neither to depose nor to retain an outside expert of its own to testify regarding the standard of care. See Doc. 38-1. The Government points to Physical Therapist Amy Reindl's testimony that bed alarms were helpful for patients with cognitive problems, that Jones did not have any cognitive issues, and thus that a bed alarm would not have been helpful in Jones' care. Doc. 24 at ¶ 53.

Sheppard reviewed records relating to Jones' Rosebud IHS and Sanford Hospital admissions and stays. Doc. 19-8; Doc. 38-3. Sheppard listed her educational and vocational background regarding her expertise in nursing and geriatric care. Doc. 19-8; Doc. 38-3. Sheppard then wrote in her letter report that she "is familiar with the standards of practice across the United States" and "[biased upon my review of the records, it is my opinion that the nursing and support staff and management of Rosebud Hospital failed to meet the standard of care in their ...


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