Legal Review and Commentary
Woman's fainting during mammogram leads to skull fractures and $3 million verdict
By Blake J. Delaney, Esq., Buchanan Ingersoll & Rooney PC, Tampa, FL
News: A woman undergoing a mammogram fainted and struck her head on the concrete floor, which caused her to suffer skull fractures, cerebral edema, and ultimately a stroke, brain damage, and paralysis. The woman sued the hospital claiming that the floors should have been padded to protect patients who faint or fall during such procedures. A jury returned a verdict of $3 million in favor of the woman.
Background: A 50-year-old former school teacher went to the hospital for a mammogram upon discovering a lump in her left breast. During the procedure, the woman fainted and struck her head on the concrete floor. She suffered massive skull fractures and cerebral edema, a swelling of the brain. The woman was in a comatose state for six weeks, which led to a stroke, brain damage, and paralysis on the right side of her body. In rehabilitation, she had to learn to talk and walk again, as much as her brain would allow.
The woman sued the hospital for negligence and claimed that the hospital's floor should have been padded to protect patients in the event of a fall. The plaintiff's attorneys sought $7.6 million in compensatory damages for lost income, medical bills, and nursing care for the rest of the woman's life, as well as additional money for pain and suffering. Although the hospital maintained that the risk of injury was so small that no additional measures needed to protect patients from the risk of falling during a mammogram, a jury returned a verdict of $3 million against the hospital.
What this means to you: This case underscores the importance of designing health care environments to protect against fall prevention. "It is a well-proven tenet that falls cause injuries," says Lynn Rosenblatt, CRRN, LHRM, director of quality and risk management at HealthSouth Sea Pines Rehabilitation Hospital in Melbourne, FL. "This is particularly true in the health care industry, considering that the individuals served may carry inherent issues which increase the probability of falling."
Rosenblatt points out that fall prevention programs are mandated for hospitals by licensure laws in many states. The Joint Commission on Accreditation of Healthcare Organizations has made fall prevention a focus in its current National Patient Safety Goals, a national collaboration between the Joint Commission and other health care-focused quality and safety organizations. Specifically, the Environment of Care standards foster a culture of safety prevention and awareness designed to anticipate the obvious and the unexpected.
Rosenblatt suggests that central to the facts presented is the extent of the hospital's obligation to prevent injury, even from situations that are most unlikely to occur. "Courts have long held that businesses that provide services to the public have a higher standard of care in terms of personal safety. While individuals have some obligation to refrain from dangerous situations and activities over which they have personal control, the business cannot be held without blame if it fails to address every potential safety issue. This is true in grocery stores, hotels, restaurants and, of course, hospitals and physicians' offices," says Rosenblatt.
In this case, the hospital's defense was that because the risk of injury was so slight, it should not be held responsible if that small probability of injury actually occurred. Rosenblatt suggests, however, that in reality, the core issue is not as specific as a patient falling during a mammogram, but rather the prevention of falls in general. The hospital in this case provided services in an area with a concrete floor. The patient fell unexpectedly, hit her head, and sustained a brain injury.
To identify the root cause of the injury, a risk manager should analyze whether this fall was preventable and whether the diagnosis center could have ascertained the patient's potential for falling prior to the procedure. Even though fainting is generally a random occurrence, Rosenblatt notes that there are ways to calculate potential risk. "A mini-health screen questionnaire at the time of check-in for an outpatient procedure could have alerted the technician to the possibility that the patient may be at increased risk. While mammograms are not invasive, they can be grueling in terms of prolonged standing and the momentary discomfort that they cause. The questionnaire would allow for a quick evaluation of the pros and cons of continuing with the procedure," says Rosenblatt.
Another simple risk management prevention technique that could have been used in this case is identifying whether the patient had any disease processes, such as hypertension, diabetes, chronic sinus infections, ear infections, and cardiovascular disease that would have caused her to momentarily lose consciousness. "Identifying these conditions, and determining whether the patient had taken her medication properly and on time, would be valuable to establishing the safety to proceed with diagnostic testing," says Rosenblatt.
Rosenblatt also recognizes the role of the floor in the patient's injury. She questions why the concrete was exposed and not carpeted or padded. "Concrete may be durable, but it is not the surface of choice in a patient environment. It is an unforgiving surface, best suited for structural and manufacturing applications. Even in a factory, workers generally stand on pads to cushion the surface in order to reduce strain and limit injuries from falls. Concrete is slippery when wet and so hard that falling will more likely cause serious injury as opposed to softer surfaces where the impact would not be so severe," she notes.
Rosenblatt also is quick to point that the hospital in this case obviously did not complete a safety inspection of its imaging area. "If one had been done, the question of the flooring material certainly would have been addressed," Rosenblatt says. "While carpeting may be unsuitable in some applications, it is universally the product of choice as a floor covering in areas where sound abatement, slip resistance, and padding are key components to maximizing safety and comfort."
If carpeting is not appropriate in a particular area, Rosenblatt suggests that vinyl tile is frequently a better choice than concrete. "While this is merely a covering and still a hard surface, it does have some cushioning properties that raw concrete does not have. And at the very least, a spongy rubber mat could have been utilized around the equipment to help prevent slips and cushion falls." While measures such as mats and carpets cannot completely remove the possibility of injury in the event of a fall, they go a long way to ensuring that an injury will not be so severe. In this case, for example, had the woman fallen on carpet or tile rather than concrete, she may have broken her hip, wrist, or elbow. At least these injuries would not have been as severe as the skull fracture and serious brain injury that did occur.
A final lesson underlying this case from which risk managers can learn involves the practical side to resolving issues once they do arise. Risk managers must judge the eventual outcome of jury trials, particularly with a defense that, at best, is described as self-serving and delusional. "Risk management is all about calculated lost. Whoever was responsible for assessing the exposure in this case clearly missed the boat," admonishes Rosenblatt.
The damages in this case were extreme, considering that the plaintiff most certainly claimed that not only did the injury cause her considerable personal financial loss, but it also altered the course of her life beyond recovery. The jury also undoubtedly heard expert testimony that carpeting in the area would have prevented the injury from being so serious. Regardless as to the reality that carpeting may not have made any difference, the jury likely viewed the hospital's failure to have something so basic as a willful disregard for personal safety, considering that a jury taken from the population at large often views carpet in public places as the standard. Without convincing evidence that carpeting would have been inappropriate in that setting, the jury probably surmised that the hospital was cutting corners at the expense of its patients.
Although the narrative does not say if mediation was attempted, Rosenblatt is adamant that this case should have been mediated until it was settled. "Even the most unexpected freak occurrence can carry significant consequences, especially when the ultimate decision maker is a jury. Mediation would have saved the time and money involved in preparing for the trial, it would have given the hospital more control over the award, and it would have avoided a public spectacle that cases such as this one generate. The lesson learned is that one never trusts the unknown when one knows that there exists doubt as to a verdict." As in the Kenny Rogers hit The Gambler, "You got to know when to hold 'em, know when to fold 'em." "This case shows that to be ever so true," concludes Rosenblatt.
- North Carolina Superior Court, Cumberland County, Case No. 03 CVS 7974.