Chamis v. Ashland Hospital Corp. , 532 S.W.3d 652 ( 2017 )

JONES, JUDGE

DISSENTING:

Respectfully, I dissent. While the majority opinion makes many excellent points, in my opinion, when the facts are viewed in a light most favorable to Chamis, I believe at least a portion of her claims should have survived summary judgment.

It appears to me that Chamis was arguing, at least in part, that the'hospital failed to follow its own care plan because if the bedrails had been up, as required by the hospital’s own care plan, the decedent could not have fallen out of bed because he was incapable of physically lifting himself over the rails. To the extent Chamis argued that the hospital’s failure to follow its own care plan was the proximate cause of the decedent’s fall, I believe , her claim sounded in ordinary negligence; therefore, no expert medical testimony was necessary to establish the standard of care. See, e.g., Martin v. Our Lady of Bellefonte Hospital, Inc., 2013-CA-000877-MR, 2014 WL 7339265, at *6 (Ky. App. Dec. 24, 2014) (“If the hospital had failed to follow steps mandated by its fall prevention plan in Larry’s care, such failure would be sufficient to .establish negligence without expert testimony.”).

Of course, this in turn would require some proof that the rails were not in use. Chamis, who cared for the decedent for a number of years, provided an affidavit describing the decedent’s physical condition and restrictions. His treating .physician testified that Chamis was debilitated on his right side and could have put his right arm and leg across his body to roll over and get out of bed. He postulated that perhaps the decedent had used his left hand to pull himself over the rails on the left side of the bed and onto to the floor. Chamis denied that the decedent had the physical strength to do so: Based on the conflicting testimony, I believe it was up to the jury to determine whether the decedent had the ability to get himself over the rails had they beén up.

[A] jury could properly decide as a matter of common knowledge that if bed rails had been properly placed in accordance with defendant’s own rule a person of plaintiffs age and physical and mental condition Would have-been prevented or deterred from leaving her bed on her own,' and that defendant’s failure to place side rails-in these circumstances was a proximate cause of plaintiffs fall.

Kadyszewski v. Ellis Hosp. Ass’n, 192 A.D.2d 765, 766-67, 595 N.Y.S.2d 841, 843 (1993).

For these reasons, I dissent.