This is a timely filed claim for damages by Francis Laverty
(“claimant”) based upon the alleged medical malpractice of the
defendant. Beginning on August 10, 2005, a plenary trial was held. The claim
of Helen Laverty is derivative in nature.
On June 28 and 29, 2002, claimant,
an 82-year-old man, was at the State University Hospital at Stony Brook, Stony
Brook, New York ("defendant" or “hospital”). Claimant alleges that
he was not monitored as he was supposed to be and that this failure to monitor
him allowed claimant to wander in the hospital, fall and break his hip.
support of claimant’s case, claimant and his wife testified.
Claimant’s son, Michael Laverty, also testified. Claimant called two
former residents of the hospital, Dr. Peter Ottavio and Dr. Frank Tsai, and
Sandra DeFalco, R.N. (“Nurse DeFalco”). Claimant also called two
experts, Dr. Irving Etkind, an orthopedist, and Dr. Richard Klein, an
Michael Laverty testified that until just a few months before
this incident, his father was capable of all physical activities with no
limitations. Claimant was hard of hearing, but no longer wore hearing aids. On
June 28, 2002, Michael went to his parents’ home after receiving a call
from his mother concerning claimant. While at his parents’ home, Michael
convinced his father to go to the hospital. During his time with his father,
Michael noticed claimant seemed confused and off balance. At the hospital,
Michael observed his father answer questions posed by Dr. Ottavio. Michael
stated that his father answered the questions “somewhat” but seemed
confused during the test.
Dr. Ottavio testified that he was with claimant
approximately one and a half hours in the emergency room. During this time, Dr.
Ottavio conducted a mini-mental status exam. Claimant scored 28 points out of a
possible 30. Claimant lost two points for not knowing if it was late June or
Dr. Ottavio said claimant answered questions appropriately and
without help from family members, and, as a result, restraints were not
appropriate for this patient. Claimant gave no indication that he would attempt
to leave his bed.
In addition, claimant complained of chest pains. According to Dr. Ottavio,
restraints could exacerbate this condition.
Nurse DeFalco testified that
she conducted a nursing evaluation of claimant. She testified that claimant
experienced some periods of confusion but that he answered her questions
appropriately. Nurse DeFalco did determine that claimant was a high risk for
falls. Therefore, the side rails of claimant’s bed were placed in the
“up” position and claimant was instructed to use the call bell for
any assistance. In her judgment, claimant heard and understood these
instructions. Nurse DeFalco testified that she would have noted any problem
with following instructions in claimant’s chart.
testified as claimant’s expert. Dr. Klein testified that claimant was
admitted to the hospital and the defendant’s employees and doctors
departed from good and accepted medical standards by not restraining claimant.
He opined that claimant should have been diagnosed with senile dementia and
restrained in his bed. On direct testimony he noted that the nurse that
admitted claimant noted that he was hard of hearing, at a high risk of falling
and disoriented. On cross-examination, Dr. Klein admitted that the
nurse’s note stated that claimant was confused not disoriented (p. 530 of
On cross-examination about standards for restraining
elderly patients, Dr. Klein stated that he was not familiar with the Joint
Commission on Accreditation of Healthcare Organization (JCAHO) guidelines, or
with the New York Code of Rules and Regulations. According to Dr. Klein,
claimant should have been restrained or had someone present at his bedside. At
the very least declared Dr. Klein, claimant should have been placed in a room
next to the nurse’s station or have had a bed alarm. Dr. Klein testified
as to the alternatives to restraints because he stated that there are risks of
physical injuries to elderly patients when using restraints.
Defendant’s expert witness was Dr. Vincent
Dr. Marchello testified that he was familiar with JCAHO, which is an
accreditation committee which accredits most of the hospitals in the northeast
region of the United States. Dr. Marchello testified that he reviewed
defendant’s written policies regarding restraints at the time of
claimant’s admission and found that the policies complied with JCAHO
Dr. Marchello was asked if restraints would be appropriate for
a patient exhibiting individual symptoms such as confusion, high fall risk,
unsteady, history of falling, and hard of hearing. After answering no to each
of these questions, Dr. Marchello was asked if physical restraints would be
appropriate for a patient exhibiting all of these symptoms. Dr. Marchello again
answered no. According to Dr. Marchello, physical restraints should only be
used under extreme circumstances, such as a combative, psychotic or delusional
patient who would “jump out a window” (p. 585 trial transcript) if
not restrained. On cross-examination, Dr. Marchello testified that dementia is
not something that the physicians in this case should have considered in
claimant’s initial assessment at the hospital. Claimant did not have a
long enough history of confusion and falls to warrant an initial consideration
of dementia. In addition, Dr. Marchello testified that there are no standards
in New York or in the JCAHO regarding the alternatives to physical restraints
Dr. Marchello opined that the treatment of claimant,
including the raising of bed rails, was within good and accepted medical
practice at the time of claimant’s admission.
The Court of Appeals,
in Killeen v State of New York
, 66 NY2d 850, held:
(at 851 - 852). The duty of reasonable care owed is
dependant upon the patient’s physical and mental infirmities known to the
hospital employees. However, constant supervision of each patient would place
an undue burden upon the State of New York (Mulberg v State of New York,
35 AD2d 856).
In Yamin v Baghel, 284 AD2d 778, the Court was faced
with an 89-year-old patient who was not placed in physical restraints in a
nursing facility. Plaintiff got out of bed unassisted to go to the bathroom.
Unfortunately, plaintiff fell and broke her hip. The Court held that to
determine whether defendant breached their duty of care to plaintiff required
consideration of the standard of care customarily practiced in other such
facilities. The Court noted that expert testimony was necessary to determine if
defendant breached its duty of care.
In the present case, there is no
dispute that claimant was a high risk for falling. The question before this
Court is whether defendant took adequate precautions to prevent the fall.
Accordingly, this Court must look to the standard of care customarily practiced
in other emergency rooms doing initial assessments of patients. The Court must
rely on the experts presented by the parties. The Court finds claimant’s
expert to be lacking as a resource on the standard of care for like facilities.
Dr. Klein is not an emergency room doctor and deals with patients after they
have been admitted. Most lacking in this expert is any familiarity with the
standard of care for most hospitals in the northeastern United States. It is
incredible that he is unfamiliar with the standards of care set by JCAHO. As
such, Dr. Klein was drawing on his subjective experiences and not the standard
for the industry.
On the other hand, Dr. Marchello’s analysis
focused on whether the written policies of defendant conformed to JCAHO
standards. Dr. Marchello clearly stated that defendant’s policies
conformed to the industry standard. As an expert in this area, he opined that
given claimant’s presentation, the use of any restraints would not be
This Court agrees that defendant’s actions were in
conformity with good and accepted medical standards. Claimant was cooperative
with all of defendant’s employees and showed no signs of being combative
or attempting to resist treatment or staying in his bed. However, given that
claimant was a fall risk, defendant needed to take precautions.
finds that the use of the bed rails was an adequate precaution in attempting to
prevent claimant from falling. Defendant had no reason to believe claimant
would not follow the instructions given to him to use the call bell. The Court
agrees with defendant’s expert that there was not a significant history at
the time of claimant’s presentment to warrant consideration he was
suffering from dementia.
While claimant was hard of hearing there is no
evidence to suggest that he was unable to communicate or understand. In fact,
the evidence is to the contrary. Nurse DeFalco and Dr. Ottavio conducted
assessments of claimant. Dr. Ottavio’s assessment lasted approximately
one and a half hours. During the assessments, claimant answered on his own and
Based upon the foregoing, the Court finds in favor of
defendant. The Clerk of the Court is directed to close the file. All motions
not specifically ruled upon are denied.
Let judgment be entered