NC: did delay in transfer of pt. cause death?: summary judgment for nursing home upheld.

CASE FACTS: William Franklin, age 85, was hospitalized on July 14, 2002. He was discharged to Britthaven, a nursing home, on July 18, 2002. The discharge summary from the hospital listed several principal diagnoses, including chest pain, new onset diabetes mellitus, urinary tract infections, and agitation/ confusion. In addition, the discharge summary listed twelve secondary diagnoses, including congestive heart failure, coronary artery disease, hypertension, mild hypothyroidism, and a history of transient ischemic attacks. On July 21, 2002, a nurse's assistant notified Ruth Cherry, a Licensed Professional Nurse, that the patient appeared to be in respiratory distress. At 7:15 a.m., Nurse Cherry examined the patient, finding mottled fingers and mouth and a low oxygen saturation. Cherry started the patient on oxygen. At approximately 8:15 a.m., the patient ate 10-20% of the food he was offered, but continued to be pale in color. Further, his pulse was lower than normal and his respirations were higher than normal. Britthaven's facility physician arrived at approximately 8:30 a.m., and examined the patient. He ordered that the patient be transported to the hospital. The patient was admitted to a hospital within the hour. There, he was diagnosed as in cardiogenic shock. He died at 7:05 p.m., on the day he was transferred to the hospital. Leigh Franklin, acting in her capacity as Executrix of the decedent's estate, sued Britthaven Nursing Home and Nurse Cherry The defendants' motion for summary judgment was granted by the Wayne County Superior Court. The plaintiff appealed.

COURT'S OPINION: The Court of Appeals of North Carolina affirmed the entry of summary judgment for the defendants. The court held, inter alia, that the dispositive issue in the case was whether the plaintiff forecast sufficient evidence from which a jury could find that the defendants' conduct proximately caused the patient's death. The court observed that in medical malpractice cases, a plaintiff "must demonstrate by the testimony of a qualified expert that the treatment administered by the defendant was in negligent violation of the accepted standard of medical care in the community and that defendant's treatment caused the injury." The court noted that the causation between negligence and a death must be probable rather than merely possible. The court further noted that the plaintiff's own expert medical witness, Dr. Gregory Rose, was given multiple opportunities to offer his opinion as to whether the decedent probably would have survived but for the delay in sending him to the hospital. The most that could be elicited from Dr. Rose was that the decedent "would have had a better chance of survival." That was not sufficient! Franklin v. Britthaven, Inc., No. COA05 (N.C. App. 10/17/2006) S.E.2d -NC

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Meet the Editor & Publisher: A. David Tammeleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He Has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.