Lamarca v. U.S., CV-96-2266 (ETB).

• Decision Date: 09 December 1998
• Docket Number: No. CV-96-2266 (ETB).,CV-96-2266 (ETB).
• Parties: Barbara A. LAMARCA, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

31 F.Supp.2d 110

Barbara A. LAMARCA, Plaintiff, v. UNITED STATES of America, Defendant.

No. CV-96-2266 (ETB).

United States District Court, E.D. New York.

December 9, 1998.

Order Amended January 11, 1999.

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Ira H. Futterman, Pearlman, Apat & Futterman, Kew Gardens, NY, for Plaintiff.

Jennifer C. Boal, United States Attys. Office Civil Division, New York City, for Defendant.

MEMORANDUM OPINION AND ORDER

BOYLE, United States Magistrate Judge.

The plaintiff, Barbara LaMarca ("Mrs.LaMarca"), brings this medical malpractice action against the United States pursuant to the Federal Tort Claims Act ("FTCA") 28 U.S.C. § 1346(b), which confers exclusive jurisdiction on the district court for actions for money damages against the United States for:

personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C.A. § 1346(b)(1) (1998). Mrs. LaMarca seeks compensation for pain and suffering on behalf of her husband, the decedent Joseph Patrick LaMarca ("Mr.LaMarca"), and also damages for wrongful death.

This medical malpractice action stems from an incident that occurred at the Northport Veteran's Administration Hospital at Northport ("Hospital" or "Northport Veteran's Hospital") in 1994. Mr. LaMarca, a patient at the Hospital, fell out of bed, fractured his right hip and died less then four months later.

Pursuant to 28 U.S.C. § 636(c), the parties consented to have the above-captioned action tried before me. See Consent to Magistrate Judge Trial, dated December 22, 1997. A bench trial was held on June 15, 1998. For the reasons stated below, I find for the plaintiff Barbara LaMarca and direct an award of $400,494 in her favor. This Memorandum Opinion and Order constitutes my findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

I. BACKGROUND

On April 11, 1994, Mr. LaMarca, was admitted as a patient to Northport Veteran's Hospital. On April 12, 1994, he fell out of bed in the Hospital and fractured his right hip. On August 4, 1994, at the age of 64, Mr. LaMarca died while still a patient of the Hospital. The plaintiff, Barbara LaMarca, decedent's wife, claims that the Hospital breached its duty to her husband when it failed to adhere to generally accepted standards of nursing care by not designating her husband as a fall risk.¹ Plaintiff further alleges that as a result of this breach, Mr. LaMarca fell out of bed, broke his hip and died from complications resulting from his injury.

A. Before the Fall

1. Medical History

Mr. LaMarca was diagnosed with arthritis in 1975 and was advised by his doctor to seek treatment at the Northport Veteran's Hospital. Tr. 18. After approximately six years of unsuccessful treatment he was put on Prednisone which relieved some of his symptoms and which he continued to take until his death. Tr. 19.

Mr. LaMarca also suffered from heart disease, including congestive heart failure ("CHF"), and atherosclerosis. Tr. 20, 26, 228. Mr. LaMarca suffered his first of seven heart attacks in 1980. Tr. 20. It was at this time that he was diagnosed with heart disease. He remained in the Hospital for about two weeks. Id. Within a year he suffered another heart attack, and was again brought to the Hospital, treated for two weeks and released. Tr. 21. A year later, Mr. LaMarca suffered his third heart attack. Id. Six months later he suffered his fourth heart attack. Tr. 22. Both times he was also treated for two weeks and then released. Some time between 1984 and 1989 Mr. LaMarca suffered his fifth heart attack and thereafter underwent quadruple bypass heart surgery at Stony Brook Medical Center. Tr. 23-24. After the bypass, Mr. LaMarca suffered two more heart attacks; one about two years later, after which he was diagnosed with congestive heart failure, and the last one in 1994. Tr. 24-25.

2. Admission

On the morning of April 11, 1994, while at the Hospital's arthritis clinic, Mr. LaMarca experienced dizziness and shortness of breath, and was unable to walk. Tr. 26-28. He was taken by ambulance to the Hospital's emergency room and several hours later was placed in the Intensive Cardiac Care Unit ("ICCU"). Tr. 29-31. Mrs. LaMarca stayed with her husband in ICCU for about ten minutes and then left when she was told that he was being moved to telemetry.² Tr. 33. She returned to the Hospital with her daughter-in-law at about six p.m. that evening for a visit which lasted about two hours. Tr. 36.

3. Treatment in the Emergency Room

On the day he was admitted Mr. LaMarca was taking several medications; Digoxin, Captopril, Prednisone, Lasix, Lopressor and Surfak Puffers, an inhalant used for respiratory distress. Tr. 161. When Mr. LaMarca was admitted he was given more of the diuretic Lasix and several other medications which acted as sedatives. Tr. 165. Compazine was administered for nausea which is known to have a sedative effect and may lower blood pressure. Id. He was given Captopril and Buspar, an anti-anxiety medication with a sedative effect. Tr. 166. He was also given Panax, another anti-anxiety medication with a sedative effect, and Benadryl, an antihistamine which causes drowsiness. Tr. 167. Panax and Benadryl both may act to lower blood pressure. Tr. 166-167. Tylox, a strong pain medication was also given. Tr. 206.

Plaintiff's nursing expert witness, Elaine Kinsella, testified that the cumulative effect of the drugs given to Mr. LaMarca, in addition to the drugs he was already taking on a regular basis, would have the effect of rendering him unsteady on his feet and lightheaded. Tr. 172. The court credits this testimony.

4. Fall Risk Assessment

The Standard of Nursing Care concerning Patient Fall Prevention, Plaintiff's Exhibit 7, at the Hospital, in relevant part, provides that:

1. Patients at risk of falling or being injured will be identified at admission ....

* * * * * *

1. The Registered Nurse performing the admission assessment will use nursing judgment to identify whether a patient is at risk for falling. Cues to relative fall risk may include dizziness, (unsteady) gait, (dis)orientation, sensory impairment, mobility difficulties, neurological problems, history of falling.

* * * * * *

4. When a patient is designated as being at risk of falling:

a. Place "fall risk" sign on bed

b. Identify patient as a "fall risk" on 24 hour report, at change of shift report and on Patient Care System.

5. Nursing actions designated to aid in the prevention of falls will be listed on the Patient Care System (Nursing Care Plan). These may include:

* * * * * *

c. Use of side rails and other protective devices

* * * * * *

i. Toileting every two hours with assistance.

Plaintiff's Exhibit 7.

Plaintiff's nursing expert, Elaine Kinsella, testified that a patient is a fall risk when he or she is dizzy or unsteady. Tr. 182-83. A patient should also be designated a fall risk when taking any medications which "suppress thought processes and/or create a hypotensive effect."³ Tr. 183. Furthermore, a patient's fall risk status should be evaluated whenever he is on any medication which would increase his need to walk, such as diuretics. Tr. 184. When a patient is admitted already complaining of dizziness, weakness and shortness of breath, these factors should also be considered when determining of the patient is a fall risk. Tr. 172. According to government witness Connie Manisero ("Ms.Manisero"), the admitting doctor, Dr. Angell, ordered bed rest for Mr. LaMarca, which meant that he could not leave his bed for any reason. Tr. 293. On his prior admission of March 4, 1994, Mr. LaMarca had been designated a fall risk. Tr. 159. On the April 11, 1994 admission however, Mr. LaMarca was not designated a fall risk. Tr. 177.

5. The Bed Rails

The Hospital's beds are equipped with four rails, two upper and two foot rails, located on either side of the bed. Tr. 295. Plaintiff testified that when Mr. LaMarca was first admitted to the ICCU he was placed in bed with all four rails in the upright position. Tr. 32. When plaintiff returned to the Hospital several hours later to visit her husband in the telemetry room, she noticed that the bed rails were down. Tr. 36. The court credits her testimony.

B. The Fall

On April 12, 1994, at around three forty in the afternoon, Mrs LaMarca went to the Hospital to visit her husband. Tr. 39. When she arrived she found him unconscious and became concerned. Tr. 40. After a conversation with one of the patients who shared her husband's room, she discovered that he had been injured in an accident. Tr. 39-42. Mrs. LaMarca asked two staff nurses on duty what had happened to her husband, but she was unable to get any information. Tr. 42.

According to the deposition testimony of Joan Adams, the nurse on duty when Mr. LaMarca was injured, Mr. LaMarca was found lying on the floor at about 11:30 a.m. on April 12. Tr. 119. In the incident report ("report") prepared by her, Plaintiff's Exhibit 4, Ms. Adams states that Mr. LaMarca had fallen out of bed but that it was unclear whether he had been trying to get out of bed or had slipped off the side. Tr. 120. According to Ms. Adams, Mr. LaMarca was not placed on fall risk until after he fell. Tr. 119. The court credits this testimony.

According to Ms. Adams's deposition testimony, and her incident report, Mr. LaMarca's bed rails were down before he fell at 11:30 a.m. on April 12. Tr. 124-26. The court credits this evidence. The government, through Ms. Manisero, the head nurse on Mr. LaMarca's unit, asserts that the bed rails were up at 3:01 p.m., on April 12 and that Mr. LaMarca probably fell some...