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Hanson v. Big Stone Therapies, Inc.

Supreme Court of South Dakota

July 25, 2018

ANITA HANSON and MARVIN HANSON, Plaintiffs and Appellants,
v.
BIG STONE THERAPIES, INC. and MILBANK AREA HOSPITAL AVERA, Defendants and Appellees.

          Considered on Briefs On May 21, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT GRANT COUNTY, SOUTH DAKOTA THE HONORABLE ROBERT L. SPEARS Judge

          VINCENT A. PURTELL STEVEN S. SIEGEL of Heidepriem, Purtell, Siegel & Olivier, LLP Sioux Falls, South Dakota Attorneys for plaintiffs and appellants.

          GREGORY G. STROMMEN of Banks, Kappelman & Strommen, Prof. LLC Rapid City, South Dakota Attorneys for defendant and appellee Big Stone Therapies, Inc.

          REED RASMUSSEN Siegel, Barnett & Schutz, LLP Aberdeen, South Dakota Attorneys for defendant and appellee Milbank Area Hospital Avera.

          SEVERSON, RETIRED JUSTICE

         [¶1.] During a physical therapy session following hip surgery, the plaintiff patient began to experience increased pain in her leg. The pain did not subside and hospital staff later diagnosed the patient with a fractured femur. The patient and her husband brought suit against the physical therapy company and the hospital. They alleged that the physical therapist was negligent during the physical therapy session, that the hospital was negligent in failing to timely diagnose the fractured femur, and that the plaintiff patient was injured as a result of the negligence of both defendants. The defendants separately moved for summary judgment, and the circuit court granted the motions after a hearing. The plaintiffs appeal. We affirm in part and reverse in part.

         Background

         [¶2.] On September 8, 2014, Anita Hanson underwent a right total hip arthroplasty at Prairie Lakes Hospital in Watertown, South Dakota. Dr. Michael Vener performed the surgery. After the surgery, Dr. Vener took x-rays, which confirmed a properly placed artificial joint. The x-ray did not reveal any fractured bones. Anita remained at Prairie Lakes Hospital until September 11. While at Prairie Lakes Hospital, Anita participated in physical therapy without difficulty.

         [¶3.] On September 11, 2014, Anita was transferred to a swing bed at Milbank Hospital for post-operative rehabilitation. Dr. Vichit Vanadurongvan examined Anita upon her arrival. His notes reported that Anita was "doing quite well" and that her "pain [was] under control." John Lightfield, a physical therapist employed by Big Stone Therapies, Inc., also examined Anita after her arrival. PT Lightfield noted that during his evaluation, Anita had no pain and had some tightness in her groin area. Later that evening, an employee of the Milbank Hospital helped Anita into bed. Anita heard a pop in her groin area, which she later claimed did not cause her significant pain.

         [¶4.] The next morning (September 12), Anita reported to hospital nursing staff that she did not have any pain but continued to experience "pulling" in her groin area. PT Lightfield provided physical therapy services to Anita in the morning and afternoon. Anita informed PT Lightfield about the popping noise she experienced the night before. During both physical therapy sessions, PT Lightfield used a geriatric chair located in Anita's room. The chair was not designed with a lever on the side. Thus, to recline the chair, PT Lightfield had to personally push on the seat back. To return the chair to a seated position, he had to manually push the footrest down. Anita claimed that during the physical therapy session, PT Lightfield placed a folding chair under the open footrest to ensure that the footrest did not unexpectedly return to a closed position, thereby causing the chair to return to an upright position. PT Lightfield could not recall if he used a folding chair but admitted that it could be possible. He further testified that the use of a folding chair "added reassurance" that the chair would not fold into the seated position.

         [¶5.] PT Lightfield's notes from the September 12 physical therapy session indicated that Anita was able to perform the same exercises she performed on September 11. She was also able to ambulate farther in each session. PT Lightfield reported that Anita was steady on her feet and that she denied any increased pain.

         [¶6.] On September 13, Heidi Pauli, a physical therapist also employed by Big Stone, provided physical therapy services to Anita. PT Pauli also used the geriatric chair in Anita's room. Anita claimed that PT Pauli placed a folding chair under the raised footrest similar to that done by PT Lightfield. PT Pauli denied ever using a folding chair but admitted that she had seen one be used in a physical therapy session with a different patient.

         [¶7.] During the physical therapy session with PT Pauli, Anita performed the same exercises as the day before and performed them without difficulty. She again was able to ambulate farther and denied any increased pain throughout the day. PT Pauli testified that it would be fair to say that Anita did not have a fractured femur when the physical therapy session ended.

         [¶8.] On September 14, Anita woke with hardly any pain. She showered and reported a slight increase in pain. She received over-the-counter Tylenol. Laurie Batchelor, a physical therapist employed by Big Stone, provided physical therapy services to Anita in the afternoon. PT Batchelor also used the geriatric chair in Anita's room. PT Batchelor noted that Anita was tender and was having muscle spasms. She altered Anita's therapy session. According to Anita, after the session concluded, PT Batchelor left the room to find someone to help her ease the footrest down on the geriatric chair. Anita claimed that PT Batchelor could not find anyone to assist and instead asked Anita's husband, Marvin, to help. Anita and Marvin similarly claimed that before Marvin could assist, PT Batchelor forced the footrest shut, which caused Anita's leg to drop quickly and the chair to return to an upright position. Anita alleged that she screamed out in pain and that PT Batchelor abruptly left the room and never returned.

         [¶9.] PT Batchelor in contrast testified that after the physical therapy session concluded, Anita said that she needed to use the restroom. PT Batchelor claimed that Anita remained in the geriatric chair while she left Anita's room to find a nurse to assist. PT Batchelor testified that she found a nurse to help and that the nurse and PT Batchelor "got [Anita] back up" and to the bathroom. PT Batchelor testified that she left Anita in the care of the nurse. She denied that she ever asked Marvin to help close the chair. She further testified that Anita never shouted out in pain; instead Anita complained of more muscles spasms and raised her voice in regard to the muscle spasms.

         [¶10.] After the physical therapy session with PT Batchelor, Anita described her pain as "off the chart." Nursing staff documented Anita's report that her pain was different or worse than previously experienced. Hospital staff gave Anita pain medication and provided her ice for her swelling leg. Anita's pain did not subside. Anita testified that she told Anna Pakelder, a registered nurse at Milbank Hospital, that the footrest had abruptly come down during her physical therapy session. She claimed that it caused her "breath-taking pain in her muscles on the right upper leg." Anita testified that RN Pakelder removed the geriatric chair from Anita's room and brought back a chair with a lever on the side.

         [¶11.] Anita's pain continued throughout the evening and night of September 14. She received additional pain medication and Demerol injections in both legs. On September 15, Milbank Hospital x-rayed Anita's right leg. The x-ray showed postsurgical changes to the right total hip arthroplasty, namely a fracture of Anita's right proximal femur. Anita was transported by ambulance to Prairie Lakes Hospital. Dr. Vener met with Anita that same day. Anita informed Dr. Vener about the popping noise she heard on September 11 and about the footrest on the chair collapsing on September 14. Dr. Vener testified that although Anita had informed him of the incident with the chair, he did not record that incident in his notes. He explained that he was more concerned about addressing Anita's fractured femur.

         [¶12.] On September 16, Dr. Vener performed a revision femoral component right total hip arthroplasty and open reduction and internal fixation right periprosthetic fracture of the proximal femur. Anita remained at Prairie Lakes Hospital until September 20, 2014, when she was transferred to Jenkins Living Center for rehabilitation. She was discharged from Jenkins Living Center on October 25, 2014.

         [¶13.] In January 2016, Anita and Marvin brought suit against Big Stone and Milbank Area Hospital. They alleged that Big Stone "failed to provide proper physical therapy and rehabilitation services to Anita Hanson[.]" They further claimed that both Big Stone and Milbank Area Hospital "failed to diagnose the fractured femur until September 15, 2014[.]" Anita averred that because of the negligence of both defendants, she was injured. Marvin claimed that as a result of the defendants' negligence, he "lost the aid, comfort, society, advice, companionship, and affection" of Anita for a period of time.

         [¶14.] The Hansons identified Jonathan Reynolds, a physical therapist and PhD, as an expert. They indicated that they "anticipated that Dr. Reynolds [would] testify regarding the care and treatment of Anita Hanson by Big Stone Therapies, Inc. and Milbank Area Hospital Avera; the use of the geriatric chair during Anita Hanson's physical therapy; and the therapists' alleged negligence." The Hansons reserved the right to supplement their expert witness designation.

         [¶15.] In his initial report, Dr. Reynolds opined that:

1. The physical therapy records of treatment rendered are brief, illegible in ...

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