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J-Tube Punctured Intestine, In-Home Nurse Not Liable


A woman requiring 24 hour care had a jejunostomy tube (J-tube) through which medications and nutrients were administered. A licensed practical nurse (LPN) employed by a home health care provider cared for the woman daily from 11 PM to 7 AM.

 

One day, the woman’s husband left a note asking the LPN to adjust her J-tube because it kept migrating outwards. With the second shift caregiver’s assistance, the LPN adjusted the J-tube.

 

The woman was admitted to the hospital the following day. The woman underwent surgery, during which it was determined that the woman had a perforated jejunum. The surgeon removed a tube which he described as fairly stiff with a sharp tip. The woman remained hospitalized until she died three weeks later.

 

The woman’s family sued the home health care provider and the LPN for wrongful death.

 

The home health care provider and LPN took the position that someone had substituted the J-tube that had been surgically inserted with a different tube. Their expert testified at deposition that it was very unlikely that the woman’s jejunum was perforated by a standard jejunostomy tube, but opined that if a person inserted into the jejunum a sharp, stiff tube, there would be a very high risk of perforation. According to the defendants’ expert, the insertion of an improper tube caused the perforation.

 

The woman’s family filed a motion in limine to exclude all testimony or evidence that the family removed or replaced the J-tube. In a supplemental filing, the family made clear that they were not asking the trial court to preclude evidence or argument that the husband had adjusted or reinserted his wife’s J-tube.

 

The Superior Court in Maricopa County granted the motion in limine precluding evidence that the family replaced the J-tube that had been surgically inserted with a different tube. The ruling expressly allowed the home health care provider and LPN to present evidence in support of their theory that the husband adjusted or reinserted the surgically inserted J-tube.

 

At deposition, the family’s standard of care expert testified that the structural integrity of a feeding tube can change over time. The expert did not discuss what might cause such changes.

 

The home health care provider and LPN filed a motion in limine to preclude the family’s standard of care expert, causation experts, and treating physicians from opining that the soft, pliable J-tube that was surgically inserted into the woman turned into the hard, sharp tipped tube that was removed during the woman’s final surgery.

 

The trial court denied the defendants’ motion in limine, subject to proper foundation being laid. At trial, the family attempted to question their standard of care expert about changes in J-tube’s over time. Specifically, the standard of care expert was asked whether the integrity of J-tube’s changes because of exposure to bodily fluid secretions and enteral feedings. The defense objected. The trial court sustained the objection.

 

The trial court overruled the family’s objection to defense counsel’s opening statement comment that someone had replaced the ordinary soft pliable feeding tube. The trial court concluded that this statement was not objectionable and was consistent with the statement of the case read to jurors.

 

During closing argument, defense counsel stated that:

 

whoever reinserted the J-tube if it was reinserted, or whoever changed it, if it was a different tube, had knowledge that that had been done, but not [the second shift nurse]. She couldn’t have known.

 

The jury returned a verdict in favor of the home health care provider and the LPN. The family moved for a new trial.

 

The trial court granted the family a new trial. The trial court found that the home health care provider and LPN violated a ruling on a motion in limine regarding the woman’s J-tube and the family was prejudiced by this violation. Additionally, the trial court found that it had erroneously prevented the family from presenting testimony regarding the hardening of the feeding tube.

 

The Court of Appeals of Arizona, Division 1, vacated the trial order and remanded with instructions to enter judgment in favor of the home health care provider and the LPN. The court held that the trial court’s ruling on the motion in limine did not preclude the home health care provider and LPN from arguing that someone other than the family had replaced the woman’s J-tube and the record did not support the trial court’s conclusion that it was an error not to permit testimony from the family’s witnesses regarding the hardening of the feeding tube.

 

The trial court’s ruling on the motion in limine did not preclude the home health care provider and LPN from arguing that someone other than the family had replaced the woman’s J-tube. The trial court overruling the objection to the defense counsel’s opening statement was consistent with its ruling on the motion in limine. The court found that the defense counsel’s closing argument was consistent with the trial court’s ruling on the motion in limine as well – suggesting that someone had replaced the woman’s J-tube, but not naming either of the family members as that someone. The court concluded that, even viewing the record in the light most favorable to the family, there was no violation. Thus, the record did not support the grant of a new trial on that basis.

 

The record did not support the trial court’s conclusion that it was an error not to permit testimony from the family’s witnesses regarding the hardening of the feeding tube. Nothing in the family’s standard of care expert’s deposition testimony addressed causative factors. The family’s pretrial disclosure stated only that their standard of care expert would testify in accordance with the expert’s deposition testimony. The court reasoned that, because the family’s standard of care expert’s opinions were not properly disclosed, there could be no prejudice in precluding the expert’s testimony. The court also noted that the surgeon who originally surgically inserted the J-tube, testified at trial that since his deposition, where he stated he had never seen a hardened J-tube, he had in fact seen a J-tube that had hardened. Allowing the family’s standard of care expert to testify regarding the hardening of the J-tube would have been cumulative and thus its preclusion was not prejudicial. The court concluded that the record did not support the grant of a new trial based on the family’s inability to present testimony regarding the hardening of the feeding tube.

 

The Court of Appeals of Arizona, Division 1, vacated the trial court’s order of a new trial and remanded with instructions to enter judgment in favor of the home health care provider and the LPN.

 

See: Brummett et al. v. MGA Home Healthcare L.L.C., et al., 2016 WL 7093883 (Ariz.App. Div. 1, December 6, 2016)(not designated for publication).

 

See also Medical Law Perspectives, December 2016 Report: Gut-Wrenching Pain: Liability Risks Related to Gastrointestinal Disorders

 

See also Medical Law Perspectives, November 2015 Report: Risks in Caring for Patients with Cognitive Impairments: Alzheimers Disease and Dementia 

 

 

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