Regular Negligence or Medical Malpractice? The Falling Patient Saga Continues

Watson v. Woldenberg Village, Inc., 203 So.3d 317 (La.App. 4 Cir. 2016)

This decision of the Louisiana Court of Appeals for the Fourth Circuit is noteworthy because it departs from the currently prevalent broad definition of “medical malpractice” that affords defendants in patient-fall cases all of the tort reform protections. The court held that a suit against a nursing home seeking tort damages for injuries sustained by an unsupervised resident who fell from his wheelchair sounds in regular negligence, rather than medical malpractice, and consequently does not require screening by a special medical review panel. The negligence allegation brought by the plaintiff accused the responsible employee of the nursing home of failing to properly secure a monitor to the resident’s wheelchair. If properly set up, this monitor would sound an alarm when the resident attempts to rise out of the wheelchair and walk unassisted.

The court found that the monitor was “a straightforward two-part device, whose proper installation requires only the common-sense action of placing the sensor on the patient and the monitor to the wheelchair, positioned so that it cannot fall off or be easily removed,” and then went on to explain that “While medical judgment may have been exercised initially in identifying the risk of harm, once it was identified, and the Fall Protection Protocol put in place, failure of a low-level employee to follow through by executing a routine task is ordinary negligence.”

In making this decision, the court relied on the Coleman multifactor test. See Coleman v. Deno, 813 So.2d 303, 315 (La. 2002). Under Coleman, in determining whether a suit sounds in medical malpractice, as opposed to regular negligence, or vice versa, the court should consider:

  • Whether the particular wrong is “treatment related” or caused by a dereliction of professional skill,
  • whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached,
  • whether the pertinent act or omission involved assessment of the patient’s condition,
  • 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,
  • whether the injury would have occurred if the patient had not sought treatment, and
  • whether the tort alleged was intentional.

The court’s categorization of the accident as “ordinary negligence” is controversial. Moreover, it is incompatible with the decision delivered by another appellate court of Louisiana: see White v. Glen Retirement System, 195 So.3d 485 (La.App.2d Cir. 2016) (suit complaining about nursing home residents’ fall from her bed categorized as sounding in medical malpractice).

For my discussion of the White decision, see here. For an important decision on the same issue delivered by the Texas Supreme Court, see here.