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Wierzbicki v. United States

United States District Court, D. South Dakota, Central Division

July 15, 2014

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

Page 1014

For Honora Wierzbicki, individually, Honora Wierzbicki, as the Special Administrator of the Estate Of Mary Josephine Jones, Plaintiffs: Aaron D. Eiesland, LEAD ATTORNEY, Gregory Alan Eiesland, Johnson, Eiesland Law Offices, PC, Rapid City, SD.

For The United States of America, Defendant: Diana J. Ryan, LEAD ATTORNEY, U.S. Attorney's Office (Sioux Falls, SD), Sioux Falls, SD.

Page 1015

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

From June 2 until June 4, 2014, this Court conducted a court trial of this case. Under Rule 52 of the Federal Rules of Civil Procedure, this Court now enters these Findings of Fact and Conclusions of Law.

I. Findings of Fact

A. The Parties and the Claims

Plaintiff Honora Wierzbicki (Wierzbicki) is the special administrator of the estate of her mother Mary Josephine Jones (Mary). Mary died on October 23, 2009, as the result of a head injury sustained when she fell at the Indian Health Services Medical Center at Rosebud, South Dakota (Rosebud IHS). Trial Ex. 31: Trial Ex. 49. Rosebud IHS is an agency of the United States government. Accordingly, Wierzbicki brings her claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346.

Wierzbicki on July 7, 2010, submitted a claim for damage, injury, or death to Indian Health Services relating to Mary's death. Trial Ex. 51. In the " Basis of Claim" section, Wierzbicki alleged that

Mary got out of bed to use the bathroom, the call button was at Mary's fingertips and in all likelihood she pressed the button and waited until she couldn't wait any longer and then attempted to make the trip to the bathroom alone. During this fatal trip to the bathroom, Mary fell and hit her head on the commode. On the night Mary fell, her bed rails were left down, no one answered her call light in a timely manner, and she was allowed to move from her bed unassisted. The fall prevention measures set up for Mary failed, leading to her fatal fall.

Trial Ex. 51. Some of this same language appears in the allegations of Wierzbicki's Complaint although the Complaint alleges negligence more generally on the part of Rosebud IHS nursing staff. See Doc. 1 at ¶ ¶ 8-9.

The Government contends that it was not negligent and asserts that Wierzbicki is barred from recovery because Mary was contributorily negligent or, alternatively, assumed the risk of injury. Doc. 5; Doc. 63. The Government also contests the

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damage claims made by Wierzbicki. Doc. 5; Doc. 63.

B. Mary's Hospitalization at Rosebud IHS

Mary was born on October 4, 1922, and thus was 87 years old during the time of the hospitalization at question. Trial Ex. 55; Trial Ex. 101 at 18. On the evening of October 17, 2009, Mary went to the emergency room of Rosebud IHS reporting that she had been dizzy and nauseated for three days and that she had fallen four times at home that day. Trial Ex. 101 at 9-10, 50. Mary had a long history of heart problems and was on multiple medications, some of which had possible side effects of causing dizziness. See Trial Ex. 110 at 3-4, 50; Trial Ex. 118. Emergency room physician John T. Benson evaluated Mary, observed that she was dizzy and unsteady upon standing, ordered certain tests, could not determine the exact cause of the dizziness, and chose to admit Mary to the Rosebud IHS for evaluation of her condition. Trial Ex. 101 at 7-9.

Ruth Heinert (Heinert) was the nurse at Rosebud IHS who completed the admission form with Mary and who cared for Mary during the night shift of October 17 and 18, 2009. Trial Ex. 101 at 50-51. Nurse Heinert was relatively new as a nurse, having received her registered nursing degree in 2008 and having joined Rosebud IHS in June of 2009. Nurse Heinert recorded that Mary had " acute dizziness and atoxic gait." Trial Ex. 101 at 9. Nurse Heinert recorded that Mary had been dizzy and nauseated for three days, had fallen four times at home, had an unsteady gait, had bumps from prior falls, and appeared to have slurred speech at times. Trial Ex. 101 at 9-12, 50. Nurse Heinert completed a form that assessed Mary as " At Risk" for falls, noted Mary to be an " Actual Risk of Injury" as part of her nursing diagnosis, and initiated " Fall Prevention/Monitoring." Trial Ex. 101 at 9, 13. The fall prevention measures included having Mary's hospital bed in the lowest position, having the bed wheels locked, instructing Mary on use of her call light, having the call light signal within her reach, instituting use of a bedside commode, and placement of Mary in Room 144. Room 144 is located close to the nurses' station and is one of the two patient rooms in the medical and surgical wing where a person sitting at the nurses' station can see a patient's torso in the hospital bed within the patient room. No physician placed Mary on one-to-one nursing care. Mary was not suffering from dementia and was not a suicide risk, where some form of physical restraint might be appropriately considered.

At the time of Mary's hospitalization, Rosebud IHS had adopted Lippincott's Nursing Procedures (5th Edition) to replace certain other nursing policies. Trial Ex. 103; Trial Ex. 104. Among the policies replaced through adoption of Lippincott's Nursing Procedures was a fall precaution policy from August of 2005 that was last revised in December of 2006 (August of 2005 Policy). Trial Ex. 64. Under the August of 2005 Policy, Rosebud IHS was to use bed alarms as a fall precaution and to employ a formal scoring system in assessing whether patients were fall risks. Trial Ex. 64. Rosebud IHS in fact had bed alarms at the time of Mary's hospitalization in October of 2009, but the bed alarms were not working in October of 2009 and had not been working since at least 2008. Rosebud IHS had another policy in place at the time " to assure that all clinical alarms and medical equipment alarm systems utilized for patient care are properly operational . . . ." Trial Ex. 61 at 72-73. Because the bed alarms were not operational in October of 2009, they were not utilized for patient care during Mary's

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hospitalization. Nursing staff were aware that the bed alarms did not work and at least one of the nurses had complained to Rosebud IHS management about the non-functioning bed alarms. Remarkably, the director of nursing at Rosebud IHS at the time was unaware in October of 2009 that the bed alarms had stopped working.

Lippincott's Nursing Procedures, the policy in effect at Rosebud IHS during Mary's hospitalization, did not require bed alarms as a part of the " Fall Prevention and Management" procedures. See Trial Ex. 103 at 63-68. However, Lippincott's Nursing Procedures references recommendations from the Center for Disease Control and Prevention for preventing falls in elderly patients including the use of " technological devices, such as alarm systems, that are activated when patients get out of bed." Trial Ex. 103 at 64. Lippincott's Nursing Procedures also sets forth the Morse Fall Scale, a formal scoring system, as " one method" of assessing a patient's likelihood of falling. Trial Ex. 103 at 64. Rosebud IHS did not use the Morse Fall Scale in evaluating Mary as being " At Risk; " if the Morse Fall Scale had been used, Mary would have scored as a " high risk of falling." Although Wierzbicki makes much of the failure to use the Morse Fall Scale or the scoring under the previous August of 2005 Policy, and likewise makes much of the failure of formal reassessment under such a scoring methodology, nursing staff at Rosebud IHS clearly identified Mary upon her admission as being " At Risk" for falling and an " Actual Risk of Injury," informally reassessed her frequently, and never viewed her as anything other than remaining " At Risk" for falling throughout her hospitalization. Trial Ex. 101 at 9-13.

At the time of her admission, Mary was " oriented times three," meaning she was oriented to person, place, and time. Trial Ex. 101 at 58 (noting that the patient was " Ox3" ). Mary received instruction on the use of the call light and verbalized to Nurse Heinert an understanding that she needed to use the call light for assistance. Mary initially was on a telemetry system with an intravenous (IV) drip.

Nurse Bonnie Westcott (Westcott) was responsible for Mary's nursing care during the day shift of October 18, 2009. Nurse Westcott was aware that Mary was on the fall precautions. See Trial Ex. 101 at 51. Mary was able to use the call light and did not demonstrate behavior that made Nurse Westcott concerned for Mary's mental state during the October 18 day shift. See Trial Ex. 101 at 51, 60-61.

Nurse Heinert worked the night shift of October 18 and 19, 2009, during which she provided nursing care to Mary. Mary reported that she was feeling better, but still was dizzy. Trial Ex. 101 at 51. Mary remained on telemetry with use of the bedside commode. Trial Ex. 101 at 51-52. Fall precautions remained in place. Trial Ex. 101 at 51-52. During the night, Mary became confused and was not oriented to time or place, but Nurse Heinert reoriented Mary. Trial Ex. 101 at 51, 60. At other times during the night, Mary was oriented only to person and place, although lack of orientation to time is not uncommon for elderly patients in the middle of the night. At one point in the night, Mary was sitting at her bedside, which concerned Nurse Heinert and prompted Nurse Heinert to reenforce the need for Mary to remain in bed and to call for assistance to get up. Trial Ex. 101 at 52.

During the day of October 19, 2009, physical therapist Amy Reindl (Reindl) visited Mary to assess her. Reindl had provided past care to Mary for other conditions. Reindl used a gait belt to walk with Mary. Reindl noticed that Mary was unstable while walking. Trial Ex. 101 at 52.

Page 1018

Mary did better when Reindl introduced a front-wheel walker and indeed was able to walk one-hundred feet with the walker. Trial Ex. 101 at 52. During Reindl's assessment, Mary verbalized that she knew herself to be a risk of falling. Trial Ex. 101 at 52. Reindl recommended that Mary remain in the hospital. Trial Ex. 101 at 52.

During the night shift of October 19 and 20, 2009, Theresa Kelley (Kelley) provided nursing care to Mary. Mary remained on telemetry with the use of a bedside commode at the time. Nurse Kelley knew that Mary was a fall risk at the time she took over the care for Mary. Mary did not have family staying with her; her daughter Wierzbicki [1] lived in California and was in touch with Mary and was following her care by telephone. Nurse Kelley took it upon herself to spend extra time with Mary, charting in Mary's room when Mary was oriented only to person and place in the middle of the night. See Trial Ex. 101 at 62. When Mary awakened in the midst of the night, Nurse Kelley gave her the task of folding wash cloths to keep Mary occupied during times when Nurse Kelley checked other patients. At one point during her care for Mary, Nurse Kelley observed Mary sitting at bedside, oriented to person, place, and time. Nurse Kelley instructed Mary on the use of the call light, which Mary understood.

During the day of October 20, 2009, Reindl again visited Mary. Mary reported that she was feeling better, but was continuing to have dizziness when standing up and was concerned with her balance. Trial Ex. 101 at 53. Reindl reenforced that Mary was not to get up without assistance from the nurses. Telemetry had been ...


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