COURT OF APPEALS DECISION DATED AND FILED February 8, 2011 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PETERSON, J. The Estate of Bettie Brown
appeals a judgment, entered on a jury verdict, dismissing its negligence claim
against
BACKGROUND
¶2 This case arises from a fall Bettie Brown suffered while she
was a patient at
¶3 The hospital bed Brown used was equipped with four side rails, two on each side of the bed. The upper rails began at the head of the bed and ran adjacent to the mattress until about the patient’s waist, and the lower rails ran from waist level to the foot of the mattress. There was about a seven-inch gap between the upper and lower rails. Each rail rose to a height of eleven to sixteen inches above the mattress.
¶4 Because Brown was deemed a high fall risk, the top two rails on her bed were kept in the raised position throughout her hospital stay, pursuant to Memorial’s fall risk policy. Hospital protocol dictated that all four rails should not be raised unless ordered by a doctor or requested by the patient’s family. According to the nurses who cared for Brown, this was because the use of four rails constitutes a restraint,[1] and under hospital policy, “[t]he patient has a right to be free from restraints of any form that are not medically necessary.” Brown’s nurses also testified that using four rails poses certain risks, as a patient who wants to get out of bed may attempt to climb over, under, or between the rails. A patient may become tangled in the rails, causing bruising and skin tears.
¶5 On November 13 at 2:10 p.m., Brown’s nurse, Christine Wegner, heard a crash and found Brown lying on the floor next to her hospital bed. The fall caused severe bruising on Brown’s face and shoulder. Wegner completed a patient occurrence report later that day. Under the heading “Identify what immediate steps were taken to prevent repeat occurrence,” Wegner wrote, “4 rails up.” Brown died seven days later from unrelated causes.
¶6 Brown’s estate sued Memorial for negligence. The case was tried to a jury. At trial, the Estate argued Brown’s nurses were negligent for failing to raise all four rails on Brown’s bed and also for failing to advise Brown’s husband that he could request all four rails be raised. In support of its “failure to advise” theory, the Estate’s attorney asked Brown’s husband and son whether any Memorial employee had advised them of the option to raise all four rails and whether they would have exercised that option. Memorial objected, arguing the Estate’s “failure to advise” theory was tantamount to an informed consent claim. Memorial noted the Estate had not pled an informed consent claim and asked the circuit court “to dismiss [any informed consent claim] to the extent it is being advanced.”
¶7 The court determined it could not dismiss an informed consent
claim because no such claim had been pled.
However, the court indicated, “My preference is we don’t talk anymore
about whether anybody informed the Plaintiff or Mrs. Brown’s family about the
possibility of raising the side rails.”
The court agreed to issue an instruction informing the jury that
“there’s no [informed consent] claim in the case … and that it would require
medical evidence to prove, which is absolutely absent in this case.” The court ultimately gave a version of
There is no claim in this case and no evidence in this case that the nurses had any duty to advise Bettie Brown’s family that four rails could be put up if the family requested. You may not consider whether or not the family was so advised as a component of negligence in this case.
¶8 The court also precluded the Estate from introducing the patient occurrence report Wegner completed after Brown’s fall. Specifically, the Estate sought to introduce Wegner’s statement that she put “4 rails up” as an “immediate step[] … to prevent repeat occurrence.” The court determined Wegner’s statement was evidence of a subsequent remedial measure and therefore inadmissible under Wis. Stat. § 904.07.[2] The Estate argued the statement was admissible for impeachment purposes. However, the court concluded it did not fit into the narrow impeachment exception because it was not offered to contradict a “specific fact” to which Wegner had testified.
DISCUSSION
I. Jury instruction
¶9 A circuit court has wide discretion when instructing a jury. Nommensen v. American Cont'l Ins. Co.,
2001 WI 112, ¶50, 246
¶10 The circuit court modified
¶11 The general rule in
¶12 Here, expert testimony would have been necessary to show that
Memorial employees breached the standard of care by failing to advise the
Browns they could request that all four rails be raised. Whether to advise a patient’s family about
the option to impose restraints is a discretionary decision that requires a
nurse to exercise professional judgment.
The proper exercise of this professional judgment is not within the realm
of common knowledge or ordinary experience. Thus, expert testimony was necessary for the
jury to determine whether Brown’s nurses properly exercised their professional
judgment when they decided not to advise Brown’s family about the four-rail
option. See Cramer, 45
¶13 The Estate cites four cases for the proposition that expert
testimony is not necessary. See Kujawski, 139 Wis. 2d 455; Cramer,
45 Wis. 2d 147; Schuster v. St. Vincent Hosp., 45
Wis. 2d 135, 172 N.W.2d 421 (1969); Snyder v. Injured Patients & Families
Comp. Fund, 2009 WI App 86, 320 Wis. 2d 259, 768 N.W.2d 271. Kujawski held that expert testimony
was not required to establish the standard of care with respect to a nursing
home’s failure to use a safety belt when transporting a patient in a
wheelchair. Kujawski, 139
¶14 If the issue on appeal were whether Brown’s nurses were
negligent for failing to raise all four side rails, the cases cited by the
Estate would be on point. However, the
issue here is whether Brown’s nurses were negligent for
failing to advise her relatives about the option to raise all four rails. The cases the Estate cites stand for the
proposition that “[o]ne does not need to be an expert to be able to determine
whether a person should be in or out of restraints.” See Cramer, 45
¶15 The Estate apparently argues expert testimony is unnecessary because
Memorial’s bedside rail policy sets the standard of care. The Estate contends the policy imposes a duty
on nurses to inform a patient’s family about the option to request four rails. However, regulations adopted by a private
organization do not set the standard of care in a negligence case because the
standard of care must be set by law. See Johnson
v. Misericordia Cmty. Hosp., 97
¶16 Furthermore, nothing in Memorial’s policy requires that nurses inform a patient’s family about the option to raise all four side rails. The policy merely allows nurses to raise all four rails when a patient’s family requests it. Thus, under the policy, whether to advise a patient’s family about the availability of the four-rail option is a discretionary decision that requires a nurse to exercise professional judgment. Again, expert testimony would have been necessary for the jury to determine whether Brown’s nurses properly exercised their professional judgment in this respect.
II. Patient occurrence report
¶17 The Estate next argues the circuit court erred by refusing to
admit the patient occurrence report Wegner filled out after Brown’s fall. The admission or exclusion of evidence lies
within circuit court’s sound discretion.
Ansani v.
¶18 The Estate sought to introduce Wegner’s statement that she put “4 rails up” as an “immediate step[] … to prevent repeat occurrence.” The circuit court determined Wegner’s statement was evidence of a subsequent remedial measure and the patient occurrence report was therefore inadmissible under Wis. Stat. § 904.07. Section 904.07 provides:
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment or proving a violation of s. 101.11. (Emphasis added.)
The Estate apparently concedes the patient occurrence report is evidence of a subsequent remedial measure, but it argues the report is nevertheless admissible to impeach Wegner’s deposition testimony. Citing Ansani, the circuit court concluded the report was not admissible for impeachment purposes because it did not contradict a specific fact to which Wegner had testified.
¶19 The circuit court properly exercised its discretion. In Ansani, 223
Based on [the impeachment exception in Wis. Stat. § 904.07], a circuit court should restrict cross-examination when the thrust of the questioning is to admit evidence of post-event remedial measures to show that the defendant was negligent, but not when it is used for impeachment purposes. If this impeachment exception were construed too broadly, any time a defendant controverted an allegation of negligence, a plaintiff could bring in evidence of subsequent remedial measures to prove prior negligence or culpable conduct under the guise of impeachment. However, evidence of subsequent measures is properly admitted under narrow circumstances such as to impeach a witness in regard to a specific fact to which the witness has testified. (Citations omitted.)
Thus, in order for evidence of subsequent remedial measures to be admissible for impeachment purposes, the evidence must contradict a specific fact to which a witness has testified.
¶20 The patient occurrence report’s statement that Wegner put “4 rails up” as an “immediate step[] … to prevent repeat occurrence” does not contradict any specific fact to which Wegner testified. Wegner never testified that putting four rails up would not have prevented Brown’s fall. When asked at her deposition what she could have done differently to keep Brown from falling, Wegner testified, “I could have—I could have sat in the room the whole day. That would have prevented it from happening …. But that’s an impossibility. I have … things to do.” This does not amount to testimony that putting four rails up would not have prevented Brown’s fall. Wegner was simply responding to an open-ended question about preventative measures by listing one thing she could have done differently.
¶21 Moreover, the patient occurrence report only asks what “immediate steps were taken to prevent [Brown from falling again].” The patient occurrence report does not state that the use of all four bedside rails would have prevented Brown from falling in the first place. Accordingly, even if Wegner had testified that the use of four rails would not have prevented Brown’s fall, the patient occurrence report would not contradict that testimony.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
[1] In
a footnote in its brief-in-chief and a footnote in its reply brief, the Estate
argues the use of four side rails is not a restraint. This argument is undeveloped, and we decline
to address it.
[2] All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.