Patient Fall: Medical Malpractice or General Tort?

By Alex Stein

Courts coalesce around the view that patient fall injuries are actionable only as medical malpractice except when the care provider acts with intent or malice. This approach gives providers of medical care all the protections that benefit defendants in medical malpractice cases (compulsory suit-screening panel procedure, merit certificate / affidavit as a prerequisite for filing suit, stringent and short time-bars for filing suits that use both limitations and repose mechanisms, strict same-specialty requirement for expert witnesses, damage caps, and other protections).

The recent decision of the Louisiana Court of Appeals, White v. Glen Retirement System, — So.3d —- (La.App.2d Cir. 2016) 2016 WL 1664502, continues this trend.

This decision involved a 94–year–old nursing home resident who fell out of her bed that had been placed in the highest position by a certified nursing assistant and suffered bilateral femoral fractures that led to the amputation of her leg. Following this accident, the resident filed a tort suit against the nursing home, alleging negligence and intentional cover-up. She drafted the suit as alleging general torts, rather than medical malpractice, and for that reason did not submit it to a medical review panel prior to filing pursuant to Louisiana’s Medical Malpractice Act.

Both the trial court and the Court of Appeals have applied the substance test and categorized the suit as an action for medical malpractice. Based on that categorization, the Court of Appeals affirmed the trial court’s decision to strike the suit down as premature. The substance test was articulated by the Louisiana Supreme Court in Coleman v. Deno, 813 So.2d 303 (La. 2002), and it includes the following:

1) whether the particular wrong is treatment related or caused by a dereliction of professional skill;

2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;

3) whether the pertinent act or omission involved assessment of the patient’s condition;

4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;

5) whether the injury would have occurred if the patient had not sought treatment; and

6) whether the tort alleged was intentional.

Application of this test leaves no doubt about the suit’s nature. This suit is about medical malpractice and nothing else. The resident’s attempt to describe it differently was artificial at best. Importantly, the resident also offered no evidence to support her “intentional cover-up” theory.

For a similar multifactor test that applies in Texas, see Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496, 504-05 (Tex. 2015). This test includes the following criteria:

1. Did the alleged negligence of the defendant occur in the course of the defendant’s performing tasks with the purpose of protecting patients from harm;
2. Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the provider to protect persons who require special, medical care was implicated;
3. At the time of the injury was the claimant in the process of seeking or receiving health care;
4. At the time of the injury was the claimant providing or assisting in providing health care;
5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider;
6. If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care; or
7. Did the alleged negligence occur in the course of the defendant’s taking action or failing to take action necessary to comply with safety-related requirements set for health care providers by governmental or accrediting agencies?

For my analysis of the Ross decision, see here.