As a special feature to our Premium subscribers we have included this feature containing an illustrative defendants’ Motion and Brief for summary disposition in a nursing malpractice action involving a patient with sleep apnea and a nurse’s failure to monitor the patient’s vital signs and properly administer narcotic pain medication when there was a danger of respiratory depression after the patient’s hip surgery, resulting in an alleged neurological injury.
The illustrative motion and brief may be used as a guide for drafting a summary judgment motion in a malpractice action involving a sleep disorder, such as sleep apnea. Party identifying information has been redacted to protect privacy.
See also Medical Law Perspectives March 2016 Report: Slumbering Concerns: Sleep Disorder Treatment Risks and Liabilities (to be published March 1, 2016)
DEFENDANTS MEDICAL CENTER AND HEALTHCARE SYSTEM MOTION FOR SUMMARY DISPOSITION
NOW COMES the Defendants, [defendant medical center] and [defendant healthcare system], and through their attorneys, [defendants’ attorney], and in support of its Motion, states as follows:
1. This is a medical malpractice action involving the nursing care of an elderly patient following hip surgery.
2. To prevail in a malpractice action against a healthcare professional, the plaintiff must prove the elements of duty, breach, causation, and damages. [Cite case].
3. Expert testimony is required to establish the standard of care and the defendant’s breach of that standard. [Cite case]. The statutory requirements for the expert to qualify as an expert witness and for admissibility of the testimony itself must be adhered to carefully, see [cite rule], because in most cases, the plaintiff will not be able to prove his or her case without this testimony.
4. The plaintiff must also prove the causal link between the defendant’s alleged negligence and the injury to a reasonable degree of medical certainty. Causation may not be left to speculation or conjecture. [Cite case].
5. The plaintiff has the burden of proving by a preponderance of the evidence that such a causal relationship exists. [Cite case].
6. In this case, plaintiff has been unable to fully support any breach of the standard of care.
7. As such, this case should be dismissed.
WHEREFORE, Defendants respectfully request that this Honorable Court enter an Order dismissing this case with prejudice.
Respectfully submitted,
[Attorney signature and information] [Date]DEFENDANTS MEDICAL CENTER AND HEALTHCARE SYSTEM BRIEF IN SUPPORT OF MOTION FOR SUMMARY DISPOSITION
FACTS
Pertinent History
On [date], the patient refused to use a CPAP, which is the treatment for sleep apnea.
The patient saw [orthopedic surgeon] on [date]. The patient presented with her husband concerning right hip issues. She had persistent pain with all activities. Risk factors of a total hip replacement were reviewed and they included problems with anesthesia, medical complications, including the possibility of death.
Patient Care [date to date]
The anesthesia record from [date], filled out preoperatively, notes that the patient’s respiratory history was negative, meaning she did not disclose her sleep apnea. The hip surgery ended at approximately [time a.m.] and the operative report by [orthopedic surgeon] indicates that the patient tolerated the procedure well and was stable upon leaving the operating room (OR). Below is a timeline of key events over the next several hours.
8:00 a.m.
Medication orders *Dilaudid – .5 to 1 mg IV push every 3 hrs PRN severe pain ordered by [orthopedic surgeon], Hydrocodone-Acetaminophen 5-325 mg 1 tablet PO every 4 hrs x 48 hrs then every 4 hrs PRN moderate pain and Zofran 4 mg IVP every 6 hrs PRN (Lower Extremity Orders for Hip & Knee Replacements)
10:00 a.m.
Vital signs taken: 112/55 – 63 – 17 – 97 (Perioperative nursing summary)
10:25 a.m.
*Patient admitted to unit
10:35 a.m.
Vital signs checked [109/57, 96.1, 68BPM, 20 RR, 96% on NC]
10:40 a.m.
0/10 pain score per [nurse]
11:18 a.m.
4/10 pain score per [nurse] (hourly rounding)
11:50 a.m.
Hydrocodone-Acetaminophen 5-325 tab PO given per [nurse] (medication administration)
12:18 p.m.
Dilaudid 1 MG, IVP given per [nurse] (medication administration)
12:19 p.m.
*7/10 pain score per [nurse] (hourly rounding) *Pain is sharp, located in right hip, alleviated by meds per [nurse]
1:09 p.m.
Sleeping per [nurse]
1:23 p.m.
Consultation dictated for [doctor 1] by [doctor 2]: Vital signs normal. She is in mild distress due to pain of surgery. Will emphasize pain and nausea control. Neurologically normal. [109/57, 96.1, 68BPM, 20 RR, 96% on NC]
1:30 p.m.
Benadryl 25 mg PO q 6 hrs PRN pain and “Give Dilaudid .5 mg IVP x 1 now” ordered by [nurse practitioner] (physician’s order)
1:56 p.m.
*Zofran 4 MG IVP, Dilaudid .5 MG, given per [nurse] (medication administration) *8/10 pain score, sharp right hip pain per [nurse]
1:58 p.m.
Benadryl 25 MG cap PO given by [nurse]
2:20 p.m.
*Nutrition/hygiene precautions per [physician assistant] * Up eating 100% of her lunch by herself per [physician assistant]
2:25 p.m.
*[Physical therapist] attempts to see patient for physical therapy evaluation per order; lying supine in bed and very nauseated at this time per [physical therapist]
2:30 p.m.
Sleeping per [nurse]
3:10 p.m.
Sleeping per [nurse]
4:15 p.m.
Sleeping per [nurse]
4:15 p.m.
[Provider] takes patient’s vital signs. BP: 80/44; Temp: 95.3; HR: 64; Resp: 20; 02 SAT: 60 – Rapid response team called.A rapid response team note is dated [date] and it indicates that they were called because the patient had acute changes in blood pressure/heart rate/respiratory rate, was in respiratory distress, and had a change in the level of her consciousness. She was given Narcan and Ativan but did not respond to either. She was eventually intubated and transferred to the ICU.
On [date], the patient had no complaints, and was responding to questions, per a critical care note.
The patient was able to sign her own consent form on [date; nine days later] for a PICC placement.
On [date; two days later], a progress note stated that the patient looked “great” today. She was alert and energetic and “had her personality back.” She was eating a regular diet as well.
Post-Surgery Patient Care
More than a year later, [neurologist)], evaluated the patient on [date] for her memory loss and polyneuropathy. Neurologically, she was alert and oriented. Her speech and language were normal. Her mood was significantly depressed. He recommended consultation with a psychiatrist. He felt her problems were psychiatric in nature and unrelated to the care at issue.
The patient was readmitted on [date] for a colonoscopy. She was able to sign her own discharge instructions and consent forms. She denied sleep apnea.
On [date; one year after], the patient wanted to talk about her low oxygenation. [Doctor 1] said that the patient did not use her CPAP mask. She was supposed to be on oxygen at night but did not wear it before. She was neurologically intact with no sensory deficit.
In [month and year; six months later], the patient died secondary to kidney failure. Plaintiff concedes her death was unrelated to the care at issue.
ALLEGATIONS
The only allegations that appear in the notice of intent and the complaint are the following alleged nursing breaches of the standard of care:
1. Appropriately monitor the patient;
2. Check vital signs before giving narcotics;
3. Refrain from giving narcotics if there is a danger of respiratory depression;
4. Check with the physician before giving narcotics if there is any question regarding the status of the patient;
5. Refrain from giving narcotics if the patient is sleeping and not in pain;
6. Check back after narcotics are given for vital signs and the status of the patient; and
7. Use appropriate nursing care to assess, record, and report significant findings.
APPLICABLE LAW
Standard of Review
This motion is brought pursuant to [cite rule], which provides, in pertinent part, as follows:
(C) Grounds. The motion [for summary disposition] may be based on one or more of these grounds, and must specify the grounds on which it is based;
(8) The opposing party has failed to state a claim upon which relief can be granted;
(10) Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.
A motion for summary disposition brought pursuant to [cite rule] may be based on grounds that a plaintiff has failed to state a claim upon which relief may be granted. [Cite case].
Under [cite rule], a motion for summary disposition may be granted where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. A motion for summary disposition is appropriate when there is no factual support for the claim. [Cite case].
I. Plaintiff’s Expert Testimony
To prevail in a malpractice action against a healthcare professional, the plaintiff must prove the elements of duty, breach, causation, and damages. [Cite case]. Expert testimony is generally required to establish the standard of care and the defendant’s breach of that standard. [Cite case]. The statutory requirements for the expert to qualify as an expert witness and for admissibility of the testimony itself must be adhered to carefully, see [cite statutes], because in most cases, the plaintiff will not be able to prove his or her case without this testimony. The plaintiff must also prove the causal link between the defendant’s alleged negligence and the injury to a reasonable degree of medical certainty. The plaintiff has the burden of proving by a preponderance of the evidence that such a causal relationship exists. [Cite case]. This relationship or causal link requires proof to a reasonable degree of medical certainty. One court defined the phrase as follows:
When a doctor is asked to base his [or her] opinion on a reasonable degree of medical certainty the certainty referred to is not that some condition in the future is certain to exist or not to exist. Rather, the reasonable certainty refers to the general consensus of recognized medical thought and opinion concerning the probabilities of conditions in the future based on present conditions. [Cite case].
In other words, the expert must be able to testify that it is definitely probable that the injury would not have occurred but for the negligent act or omission. The issue of proximate cause may not be left to mere speculation or conjecture. [Cite case].
II. Application of the Law to the Specific Allegations
A. Failure to monitor.
Plaintiff claims the nursing staff failed to monitor the patient. This is obviously a very vague allegation and requires us to review the deposition testimony of the plaintiff’s nursing expert, [plaintiff’s nursing expert] for specifics. (Defendant notes that [plaintiff’s nursing expert] works as a recovery room nurse and has since [year]. She has not worked as a nurse on a floor unit, such as the one the patient was on, since [year]. The only time she has seen any postoperative hip patients since then, is working as a private duty nurse 20 years ago where she was hired to take care of one patient at a time.) It appears [plaintiff’s nursing expert’s] main critique is that defendants’ nurse, [nurse] did not check the patient’s vital signs within 30 minutes of last giving her pain medication, or by about 2:20p.m. to 2:30p.m. (Exhibit 1, p. [number]) [Plaintiff’s nursing expert] also claims that the patient was snoring after surgery, which should have prompted some unspecified intervention. The vital sign issue will be discussed below.
As to the so-called snoring issue, [plaintiff’s nursing expert] states that once the patient was snoring, she should have been woken up and her lungs checked. (Exhibit 1, p. [number]) This opinion should be struck and any allegation arising out of it should be dismissed. A plain reading of the Notice of Intent (NOI), complaint, and affidavit of merit by plaintiff contain no discussion of an allegation to evaluate the patient’s snoring. (Exhibits 2, 3, and 4) In fact, it does not appear that the words “snoring” or “sleep apnea” even appear in the NOI, complaint, or affidavit of merit. [Cite statute] sets forth the requirements for a notice of intent. The Court of Appeals has clearly held that a complaint must be limited to the issues raised in the notice of intent. [Cite case]. The allegation of a failure to wake the patient up when she was snoring must be struck because it was not raised in the NOI.
Meanwhile, the allegation of a failure to monitor is too vague to survive. In [cite case], the Court of Appeals stated that the “plaintiff’s theory in a medical malpractice case must be pleaded with specificity and the proofs must be limited in accordance with the theories pleaded.” See also [cite rule] and [cite case]. A simple “failure to monitor” claim on its own is too non-specific to survive.
B. Check vital signs before giving narcotics.
[Plaintiff’s nursing expert] did not opine that vital signs must be taken before giving narcotics. She said they should be taken after a patient is given narcotics and within 30 minutes.Q. So as to the vital signs, exactly when should they have been taken and who should have taken them?
A. It could be taken a number of times if need be for the patient. I mean, they apparently say that they take them at least twice a shift on a regular patient. This is a patient who’s in acute post-op, on top of that getting IV narcotics. I think they should have taken vital signs within 30 minutes of getting an IV narcotic to see what’s going on. (Exhibit 1, p. [number], emphasis supplied)
As expert testimony is required to establish the standard of care and the defendant’s breach of that standard, plaintiff cannot support this allegation that vital signs should have been taken before giving narcotics and it must be dismissed. [Cite case].
C. Refrain from giving narcotics if there is a danger of respiratory depression.
The patient was last given narcotics, after a physician specifically ordered it, at about 1:56 p.m. As to the notion that the patient was inappropriately given narcotics [plaintiff’s physician expert] conceded that “I can’t say that what was given to her was inappropriate.” (Exhibit 5, p. [number]) [Plaintiff’s nursing expert] made the same concession. (Exhibit 1, p. [number]) In truth, the patient was given medication, pursuant to physician’s orders. Nothing the nursing staff did was without the blessing of the attending surgeon. Indeed, the order for the medication was specifically requested by the physician, and this is documented. (Exhibit 6) At 2:20 p.m., the patient was noted to be up and eating her lunch by herself. (Exhibit 7) This is hardly the picture of someone who was suffering the ill effects of the medication she received almost 30 minutes earlier.
In any case, [plaintiff’s neurology expert] testified that the fact the patient was up eating by herself means that her vital signs were normal.
Q Okay. Based on the fact that she was able to do that, eat her lunch by herself on her own, do you think it is more likely than not that her vital signs, including her oxygenation, were in the normal range?
A I think either normal or possibly low normal. And we’re talking about saturation now; correct?
Q Well, I mentioned oxygenation and vital signs, but you can answer however you want.
A All of the above. (Exhibit 8, p. [number], emphasis supplied)
In short, per plaintiff’s own experts, there was no reason to “refrain from giving narcotics” to this patient.
D. Check with the physician before giving narcotics if there is any question regarding the status of the patient.
The facts of the case indisputably show that [nurse] checked with the patient’s attending surgeon, [orthopedic surgeon], before giving the patient medications for her pain at 1:56 p.m. (Exhibit 9) [Plaintiff’s nursing expert] testified that before giving this medication, [nurse] should have evaluated the patient.
Q. If they specifically said this is what we want you to do, would it be appropriate for her to do it?
A. It’s appropriate for her to do it if she took a complete assessment of the patient and found that it was safe. (Exhibit 1, p. [number])
According to [plaintiff’s nursing expert], the patient was appropriately evaluated for pain before getting Dilaudid at 1:56 p.m. (Exhibit 1, p. [number])
E. Refrain from giving narcotics if the patient is sleeping and not in pain.
Plaintiff alleges that the patient was asleep when she received Benadryl (ordered by a physician) at about 1:58 p.m. Plaintiff alleges that [nurse] woke the patient up to give her the Benadryl. First, this is an allegation not supported by anything in the record. The record states that the patient was given a pain medication, Dilaudid, at 1:56 p.m. and only two minutes later was given Benadryl. Both were ordered by the patient’s surgeon. The records show that the patient was up eating lunch on her own at 2:20 p.m. If she was sleeping, it was for a very short period of time. If plaintiff has a problem with [orthopedic surgeon’s] order, then plaintiff should have sued [orthopedic surgeon]. Finally, the patient was in pain. The medical records show that the patient had 7/10 pain at 12:19 p.m. and then 8/10 pain at 1:56 p.m. (Exhibit 10) Her pain was getting worse and she was requesting pain medication according to her daughter. (Exhibit 11, p. [number]) Plaintiff cannot just ignore the facts of the case to try to “jimmy-rig” a claim.
This allegation also fails for a more rudimentary reason; Benadryl is not a narcotic. Benadryl is an antihistamine chiefly used to deal with allergies. Below is a description of its purposes. Please note that unlike a narcotic, Benadryl is not used to treat pain.
[Description of drug and its purposes]The medication the patient was allegedly woken up for was Benadryl, which is not a narcotic. Thus, this allegation is contradicted by the undisputed facts of the case and should be dismissed.
F. Check the patient’s vital signs after medications were given.
This has already been discussed above in parts B and C. [Plaintiff’s nursing expert] opined that [nurse] should have checked the patient’s vital signs by about 2:20 to 2:30 p.m. but [plaintiff’s physician expert] admits that they would have been normal. Therefore, the causation prong of this allegation is not met and must be dismissed.
G. Use appropriate nursing care to assess, record, and report significant findings.
This is another throwaway allegation that is totally unsupported in the depositions of plaintiff’s experts. First, there is no such cause of action for poor charting per se. There can be a negligent charting cause of action, only if the plaintiff can show that this negligence caused the patient harm. In this case plaintiff has not made such an allegation much less supported it.
In [cite case], the [state] Supreme Court held that a breach of the standard of care to keep appropriate medical records can only be a basis for a malpractice action if the alleged negligent charting had a bearing on the plaintiff’s alleged injuries:
The meritorious question is whether the treatment and care rendered was negligent. The presence or absence of written memorandum might have a bearing on [case plaintiff’s] burden of proof or of persuasion but would have no bearing on whether defendants were negligent. [Case plaintiff’s] physical condition cannot be attributed to the alleged failure of the treating physicians to keep adequate records. [Cite case, page [number]]
See also [cite case] (there was not sufficient evidence to conclude that the plaintiff’s injury was attributable to the defendant’s alleged failure to evaluate and chart plaintiff’s condition).
CONCLUSION
The only conclusion possible is that the plaintiff has not supported any aspect of this case. The main thrust of the case, as spelled out in the NOI, was a failure to take vital signs before and after giving narcotics. This claim is necessarily abandoned when the plaintiff’s experts do not support it. If there was ever a clear cut case which required dismissal, it is this one.
WHEREFORE, Defendants respectfully request that this Honorable Court enter an Order dismissing this case with prejudice.
Respectfully submitted,
[Attorney signature and information] [Date]See: Dabrowski v. Oakwood Healthcare System and Oakwood Southshore Medical Center, 2015 WL 3431230 (Mich.Cir.Ct., April 17, 2015) (Trial Motion, Memorandum and Affidavit).
See also Medical Law Perspectives March 2016 Report: Slumbering Concerns: Sleep Disorder Treatment Risks and Liabilities (to be published March 1, 2016)