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Pettit v. United States

United States District Court, N.D. Indiana, Hammond Division

March 14, 2017

JACK PETTIT, personal representative of the estate of Harold Pettit, deceased, Plaintiff,
v.
UNITED STATES OF AMERICA Defendant.

          OPINION

          PHILIP P. SIMON, UNITED STATES DISTRICT COURT

         Harold Pettit was a 92-year-old World War II veteran when he fell and sustained a fractured hip while at the Jesse Brown VA Hospital in Chicago. He brought this action against the United States under the Federal Tort Claims Act (“FTCA”), asserting that he received negligent nursing care while at the VA Hospital and that the negligent care is what caused the injuries that he sustained. Mr. Pettit has since passed away. The personal representative of Mr. Pettit's estate, his son Jack Pettit, was substituted as plaintiff. A four-day bench trial was held last fall. Because I find that the nursing care that Mr. Pettit received from the VA met the appropriate standard of care, and for the other reasons discussed below, judgment is in favor of the United States and against Mr. Pettit.

         The following are the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). To the extent certain findings of fact may be deemed to be conclusions of law, they shall also be considered the Court's conclusions of law. By the same token, to the extent matters contained in the conclusions of law may be deemed findings of fact, they shall also be considered the Court's factual findings.

         Findings of Fact

         Relevant Background Facts

         Harold Pettit was born in 1921. He enlisted in the Army Air Corps during 1941, and is a World War II veteran. During his service, he was assigned to assemble airplanes. As a veteran, he is eligible for veteran's benefits, and he routinely received his medical care from the Adam Benjamin, Jr. Veterans Affairs Clinic in Crown Point, Indiana. The Crown Point VA Clinic is a primary care medical facility that is not equipped to handle patients who need acute in-patient care at a hospital. Instead, if Crown Point VA patients are in need of acute care, they are sent to the Jesse Brown VA Hospital in Chicago.

         During the morning of June 7, 2012, Mr. Pettit was experiencing symptoms of his second stroke. He called his daughter-in-law, Pam Pettit, and asked her to drive him to the Crown Point VA Clinic. She picked him up at his house, and when she arrived, he was standing on the front porch. Mr. Pettit walked down the steps of his house with Pam's assistance and walked about twenty feet and got into Pam's car. According to Pam, he seemed fine. They proceeded to the Crown Point VA Clinic. They talked along the way and he told his daughter-in-law that he was “feeling funny.” When they arrived, Pam dropped him off at the door, and told him to wait while she went to park the car. Mr. Pettit walked into the clinic without assistance, and he was eventually put into an exam room.

         Hayssam Kadah, M.D., is a board certified internal medicine and geriatric physician at the Crown Point VA Clinic. He had been Mr. Pettit's primary care physician at least since 2002. Dr. Kaddah was on duty at the clinic that day, and he attended to Mr. Pettit. According to Dr. Kaddah's report, Mr. Pettit rose and took a few short steps to the examining table. (Def. Ex. D at 1258.)[1] Dr. Kadah immediately identified Mt. Pettit's symptoms as a probable stroke. This was because Mr. Pettit had some compromise in his visual field which is indicative of a potential failure of his vascular system, all of which points to a stroke. Dr. Kaddah therefore ordered Mr. Pettit's immediate transfer by ambulance to Jesse Brown VA Medical Center.

         Jesse Brown is a full-service acute care hospital for veterans located in Chicago. Mr. Pettit arrived at the emergency department of Jesse Brown by ambulance at 10:18 a.m. on June 7, 2012. His admitting diagnosis at Jesse Brown was a stroke which was an acute event that likely occurred within the twenty-four hours before Mr. Pettit saw Dr. Kadah at the VA Clinic in Crown Point. (Transcript of Bench Trial at 178, 333, hereinafter “Tr. at”___.)

         We will return to the story of what happened at Jesse Brown in a moment, but let's step back for some more background on Mr. Pettit. Mr. Pettit had his first stroke in the early ‘90s. (Tr. at 334.) But other than that, at the time of his admission to the Jesse Brown VA Hospital, all in all, Mr. Pettit was relatively active and healthy for a 92-year-old man. According to his daughter-in-law, Pam Pettit, prior to June 2012, she could not recall any major concern with Mr. Pettit's short term memory. There were no episodes of forgetfulness or short term memory loss that she could observe and she spoke with him almost daily. Mr. Pettit's son, Jack, said pretty much the same thing. There were occasions when they arranged a dinner with Mr. Pettit and he would have to call to be reminded of the appointed time, but other than these minor memory lapses, Mr. Pettit was still pretty sharp.

         Mr. Pettit still occasionally played golf and when he wasn't playing, he served as a scorekeeper for his senior golf league. He mowed his own lawn with the use of a riding mower. He also continued to drive on occasion as well as do his own grocery shopping and budgeting. (Pl. Ex. 1263.)[2]

         It is also the case that Mr. Pettit wasn't always compliant with his medical care. For example, about a month before his latest stroke, Mr. Pettit went to see Dr. Kaddah. This was on May 1, 2012. At that time, he was complaining of low back pain. He had a cane but he rarely used it and this was noted by the doctor. Although he was holding the cane, he really wasn't relying on it. The plan was for him to use his cane because he had an arthritic condition and an abnormal gait and thus he was prone to falling. He also had uncontrolled hypertension; the problem was that he was not taking his blood pressure medications as directed by Dr. Kaddah. Mr. Pettit was also diagnosed with depression and was prescribed antidepressant medication from 2004 through 2012. (Tr. at 325.)

         Medical Care Provided to Harold Pettit at Jesse Brown

         After spending a significant amount of time in the emergency room, Mr. Pettit was formally admitted at Jesse Brown between approximately 10:15 p.m. and 10:30 p.m. on June 7, 2012. The admitting registered nurse was Latha Jayakumar. Nurse Jayakumar has sixteen years of experience as a registered nurse doing direct patient care in a hospital setting. Her shift ended at midnight on June 7, 2012, so Nurse Jayakumar had limited dealings with Mr. Pettit on that day. What she did do, after receiving an oral report from the registered nurse in the emergency department, was assess Mr. Pettit for forty-five to sixty minutes by interviewing him at his bedside.

         On the basis of her interview with Mr. Pettit, Nurse Jayakumar assessed him as a high fall risk using the Morse Fall Assessment Tool. (Def. Ex. C at 833.) The Morse Fall Assessment Tool uses the following questions to evaluate how great a fall risk a patient is: (1) Does the patient have a history of falls? (2) Is the patient on any kind of medication? (3) Does the patient use an ambulatory aid such as a cane or a walker? (4) Is the patient hooked to an IV? (5) Does the patient have a weak gait? And, (6) what is the patient's mental capacity? Each of these inquiries is assigned a score from one to fifteen. So the highest possible score-meaning the highest risk of fall-is ninety (15 x 6). Anything over forty-five is considered to be a high fall risk. Use of the Morse Fall assessment is the standard of care in a hospital setting and is customarily taught in nursing programs. As can be seen by the various factors that go into the Morse Fall Assessment, this is a highly subjective evaluation that necessarily involves an element of nursing judgment. (Tr. at 140, 213, 382-84.)

         After a thorough assessment, Nurse Jayakumar designated Mr. Pettit as a high fall risk. She therefore implemented the standard high fall risk precautions which included the following patient instructions: (1) Mr. Pettit was told that he had to use the call light and wait for assistance before getting out of bed and walking; (2) he was instructed to sit up in bed and wait a minute or more before standing or transferring; (3) he was admonished to always use sturdy rubber soled shoes or hard sole slippers when out of bed; (4) he was to immediately report any spills on the floor; (5) he was told to not lean on a bedside table for support or lean over the table; and (6) he was instructed to not bend over or lean over to pick up or reach for things without assistance. Nurse Jayakumar specifically discussed all these topics with Mr. Pettit, and he told her that he understood. (See Def. Ex. C at 832-33, Tr. at 213-14.)

         Other than the patient education and instruction discussed above, Nurse Jayakumar also implemented the following high risk fall precautions for Mr. Pettit's environment of care: (1) she ensured that the call light was within easy reach and answered promptly; (2) she placed the bed in a low position and locked the bed wheels; (3) she provided night lights; (4) she made sure that the floor was free of clutter; (5) she made sure that spills were cleaned up immediately; (6) she placed Mr. Pettit's personal articles within easy reach; and (7) she modified the environment for safe transfers. Nurse Jayakumar also placed gripper socks on Mr. Pettit. (Def. Ex. D at 1233, Tr. at 214-15.)

         Nurse Jayakumar also questioned Mr. Pettit at length in an effort to assess his mental capacity. She determined that he was alert and oriented to name, time, and place. And on the basis of her assessment, she determined that he was not confused and that he understood his limitations. She therefore felt comfortable in instructing him that for his own safety he needed to call the nurse and wait for assistance before getting out of bed. Nurse Jayakumar also implemented hourly surveillance rounds for Mr. Pettit. Once the need for hourly surveillance rounds is charted, nurses and nursing assistants record completion of the rounds on a white board in the patient's room. (Tr. at 215-16, Def. Ex. D at 1233.)

         On the basis of her thorough assessment of Mr. Pettit, and given the fact that he seemed well oriented and not confused, Nurse Jayakumar used her nursing judgment not to turn on a bed alarm for Mr. Pettit. (Tr. at 218-19.) Bed alarms are devices that, when activated, send out an audible noise when a patient attempts to get out of bed and thus notifies the attending nurse to that fact. (Tr. at 106.) Bed alarms are ordinarily used when a patient is not oriented to time and place, and when it seems likely that the patient is unable to follow the instruction to stay in bed and only get out of bed with the assistance of a nurse. Whether the bed alarm should have been activated for Mr. Pettit was contested at trial and was the subject of dueling expert testimony. We will return to the issue of bed alarms in a moment.

         After Nurse Jayakumar finished interviewing and assessing Mr. Pettit and writing her nursing notes of her assessment during the late evening of June 7, 2012, her shift was over, and there was not time to review any of Mr. Pettit's medical records. She spent the last half hour of her shift orally reporting on each of her patients, including Mr. Pettit, to the incoming shift nurses. She then clocked out for the night and turned over the care of Mr. Pettit to Nurse Mojisola Manieson.

         Nurse Manieson has more than twenty years experience as a registered nurse doing direct patient care in a hospital setting. Her nursing shift caring for Mr. Pettit started on June 7 at 11:30 pm and finished on June 8 at 8:00 am. Nurse Manieson testified credibly that she had no independent recollection of the day in question and that her testimony was based upon the nursing notes that she had reviewed. At the beginning of her shift, she received the oral report from the nurse who preceded her that day, Nurse Jayakumar. The oral report regarding Mr. Pettit included his name, age, diagnosis, medications, and the fact that he was a high fall risk. (Tr. at 231-32.)

         At the beginning of her shift, Nurse Manieson read the history and physical of the Jesse Brown physician who admitted Mr. Pettit. She also read the prior shift nursing notes of Nurse Jayakumar regarding her assessment and care of Mr. Pettit. (Tr. at 232.) On the basis of her interview of Mr. Pettit and her review of the prior shift nursing notes, Nurse Manieson assessed him as a high fall risk using the Morse Fall Assessment Tool. (Tr. at 233-37.) As such, she continued the high fall risk precautions put into place by Nurse Jayakumar. (Tr. at 234-35.) This was based in part on her own interview of Mr. Pettit where she assessed him and determined that he understood his own limitations. She also concluded that he understood ...


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