9 F3d 1535 Kimberly F. v. Mary Hitchcock Memorial Hospital

9 F3d 1535 Kimberly F. v. Mary Hitchcock Memorial Hospital

A nurse is performing an assessment of a prenatal client being seen in the clinic for the first time. does this worry any of you ? The nurse monitors the client, knowing that which of the following would indicate the presence of systemic toxicity from this medication? Nursing management of chicken pox varies according to the symptoms and the patient’s condition. The health care personnel should wear gowns, masks and gloves. You are working as the triage nurse in the ED when the following four clients arrive. 20.

while she was at the hospital. Because of the nature of Kimberly F.’s injury, it was agreed that she and her husband could use pseudonyms to keep some degree of anonymity. Male Nurses are Better than Female Nurses – ResearchWhy male nurses are better than female nurses? was admitted to the obstetrical unit of the hospital on August 2, 1986. Monitor for (hypothalamic pituitary adrenal) suppression. The child was full term. There were no birth complications, and she was discharged on August 5.

The nurse makes patient assignments on the medical/surgical unit. was diagnosed as having an outbreak of genital herpes. She subsequently sued the defendants alleging that she was infected with herpes while at the hospital and that defendants negligently failed to protect her from such infection. Based on this information, which of the following nursing interventions would be priority? The jury found defendants not liable on this count and there has been no appeal from this finding. Which statement, if made by the family member, indicates a need for further teaching? Encourage fluids and a healthy diet.

The health care provider should wear mask, gown and gloves. While working in the pediatric clinic you receive a telephone call from the parent of 13 year old who is receiving chemotherapy for leukemia. The nurse is caring for a patient with influenza. v. Eastern Microwave, Inc., et al., 980 F.2d 33, 35 (1st Cir. … Wilton Enterprises, Inc., 962 F.2d 120, 124 (1st Cir.

1992). The denial of a motion for judgment n.o.v. is also subject to plenary review. Which of the following symptoms is MOST important for the nurse to report to the next shift? Pontarelli v. Stone, 930 F.2d 104, 113 (1st Cir. Which of the following symptoms would the nurse tell the parent is most common in a child infected with head lice?

v. The nurse instructor asks the nursing student preparing to perform the treatment about the medication and procedure. 1991). We have conducted the requisite review and find that the district court was correct in denying the motions for a directed verdict and judgment n.o.v. The evidence viewed in the light most favorable to plaintiff was as follows. (Select all that apply.) 31. When plaintiff was examined by defendants on August 13, she was diagnosed as having an outbreak of genital herpes.

Such an outbreak is characterized by lesions in the infected area. The incubation period for a herpes infection is two to twenty-six days. Plaintiff entered the hospital on August 2, was discharged on August 5, and the medical diagnosis of genital herpes was made on August 13. She was well within the herpes incubation period. Genital herpes is a life-long affliction and, as is true of other types of herpes, is incurable. Outbreaks of herpes, manifested by lesions and cold sores, occur from time to time during the victim’s life. The first attack is usually the most severe.

The genital herpes outbreak diagnosed on August 13 was a primary (first-ever) outbreak, i.e., plaintiff never had a herpes outbreak prior to this time. Plaintiff’s sexual history was as follows. She had sexual intercourse twice in high school; both times her partners used condoms. She married for the first time in 1981. 1. The divorce became final in 1982 or 1983. She met her present husband in 1984.

She had no sexual relations with other men between separating from her first husband and meeting her present one. Neither she nor her husband had ever engaged in oral sex at any time. Plaintiff’s husband has never had any herpes symptoms. When plaintiff was first admitted to the hospital she was put in a birthing room that shared a bathroom with another patient. Plaintiff went into the bathroom alone because no one had come in response to her pushing the nurses’ call button. She felt dizzy and sat on the toilet to avoid falling. In so doing, she sat on a urine catch basin that was in the toilet bowl.

The basin contained urine from the other patient. As her labor pains increased in frequency, a nurse suggested a warm bath might help. She was taken to a room with a bathtub. Both she and her husband noted that the tub contained some dead bugs. There was an open window with no screen. Plaintiff’s husband cleaned out the tub and she took a bath. During the birthing process, an episiotomy was done.

The client with acute myelocytic leukemia is being treated with busulfan (Myleran, Busulfex). Prior to delivery, nurses examined plaintiff internally to see whether her cervix had dilated. Some of the nurses did not wash their hands in the sink in plaintiff’s room before examining her. After delivery, plaintiff experienced pain and discomfort at the site of the episiotomy. Reusable plastic ice packs were applied to ease her discomfort. The ice packs were wrapped in sterile green surgical cloth. At times, the pack was placed over plaintiff’s vaginal area in such a way that the surgical cloth did not completely cover the plastic bag.

This resulted in direct contact between the site of the episiotomy and the plastic bag. On the day of plaintiff’s discharge a nurse came in and checked plaintiff’s perineal area and touched the episiotomy site with her hands. The nurse had not washed her hands, nor was she wearing gloves. On July 31, a patient was admitted to the obstetrics unit of the hospital with a herpes lesion behind her right knee. The patient was placed on herpes isolation precautions during all of the time she was at the hospital. This entailed strict procedures to prevent the patient’s herpes infection from spreading to other patients. This patient was discharged on the morning of August 2; plaintiff was admitted at 11:30 p.m.

on August 2. A second patient with herpes was in the maternity ward at the same time as plaintiff. This patient, “J.D.,” occupied the same room as did plaintiff immediately prior to plaintiff being put in the room. Vasopressin (Pitressin) is prescribed for a client with diabetes insipidus. show that because she had had monthly episodes of herpes outbreaks during her pregnancy, she was admitted “at risk,” and was placed on herpes infection precautions. A herpes culture was taken from J.D.’s right labial lesion on July 28. It was noted in her records that she was at high risk and herpes infection precautions were continued.

J.D. gave birth via a Caesarean section on July 29. Her records show that the reasons for the Caesarean section were that the baby was breached and that J.D. was at risk with herpes. On July 30, a nurse’s note in J.D.’s records stated that she had two lesions on the left outer lower labia. A subsequent note on the same day states that J.D. continued to have lesions on the left lower labia.

There is nothing in the record indicating that any culture was taken from the lesions on her left lower labia. The only culture taken was from the lesion on the right labia. The lab report on this culture was necessarily a preliminary one; it was negative for herpes. A negative culture report on herpes normally includes the statement, “these results do not exclude infection with herpes simplex virus.” This report did not so state. On the evening of August 2, the day that plaintiff was admitted to the hospital, J.D. was transferred to the second floor. A nurse reviews the client’s medical record and would question the prescription if which of the following is noted in the client’s history?

The nurse, Linda Morgan, recorded in her chart that J.D. wanted to be taken off herpes infection precautions and that she had shown no lesions since July 29. This information was given by telephone to Dr. Ketterer and the same night, August 2, he gave a verbal order to remove J.D. from herpes precautions. Nurse Morgan admitted during her testimony that she did not tell Dr. Ketterer about the lesions on J.D.’s left labial area.

9 F3d 1535 Kimberly F. v. Mary Hitchcock Memorial Hospital
Dr. Ketterer admitted that his decision to take J.D. off herpes infection precautions was based on incomplete information. About two hours after J.D. was taken off precautions, plaintiff was admitted to the hospital. She spent the next eight hours in labor and delivery on the second floor, where J.D. was also located.

Both plaintiff and J.D. were discharged from the hospital on the same day, August 5. 1. and M.W., had herpes and worked in the maternity ward of the hospital while plaintiff was a patient there. J.W. had a history of genital herpes. She gave direct patient care to plaintiff, which included placing ice packs on her perineum and physically examining her.

There was no direct evidence that the other nurse with herpes, M.W., had patient contact with plaintiff, but she was present on the maternity ward and available to give care to all of the patients in the ward. All of the doctors who testified agreed, in effect, that it would be a violation of acceptable hospital infection precautions for a patient to be infected by herpes while a hospital patient. Appellants’ attack on the sufficiency of the evidence focuses on the testimony of plaintiff’s expert witness, Dr. James Kahn. Their claim is that “no expert witness identified any act of negligence that more probably than not caused the infection.” Appellants’ Brief at 9. Both sides agree that New Hampshire law controls this issue. We will therefore examine New Hampshire law and rule accordingly.

In New Hampshire, the plaintiff in a medical malpractice action must prove that the defendant’s negligence caused the patient’s injury or loss. See Carrigan v. Sacred Heart Hospital, 104 N.H. 73, 80, 178 A.2d 502, 506-07 (1962). “[N]egligent conduct is a proximate or legal cause of harm, if the actor’s conduct is a ‘substantial factor in bringing about the harm.’ ” Maxfield v. 1. 101, 105, 151 A.2d 226, 230 (1959) (quoting Restatement of Torts § 431(a) (1934)).

This issue is normally one for the trier of fact once a prima facie case is established. See id.; W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 41, at 269 (5th ed. 1984) (hereinafter cited as Prosser & Keeton).

We now turn to Dr. Kahn’s testimony. There was no objection to Dr. Kahn’s expert qualifications in the field of infectious diseases. The crux of his testimony came in the answers to a series of questions. Dr. Kahn was asked: “Based on your review of all the information, do you have an opinion, based on reasonable medical probabilities, as to whether or not Mrs.

F.’s infection, outbreak of herpes in August of 1986 was a primary infection?” He answered: “Yes, I continue to feel very emphatically that it was a primary infection.” In prior testimony Dr. Kahn had explained that the term “primary infection” meant a first-ever herpes infection. Dr. Kahn had explained the nature of herpes infections and how outbreaks of the disease are manifested. A. My understanding from reading the record is that there were two patients that I’m aware of who had what was either diagnosed by somebody else as an active herpes infection or to my reading certainly compatible with an active herpes infection. In his prior testimony Dr.

Kahn had discussed inanimate objects-called fomites-such as toilet seats, flat surfaces and ice packs, as potential transmission sources of herpes. He was asked if he considered fomites as a possible infection source. I did. I considered them, but my own judgment is that that’s considerably less likely. I know there was one instance in particular-I don’t know if it’s been raised before so I don’t know if I should mention it-well, I read it so I guess I can mention there was some talk about an ice pack applied to the perineum. My sense of that was that even though the ice pack could have been wrapped in gauze and therefore, could have held the virus in it, it was more consistent with what we know about herpes transmission, that it was the hand of the nurse applying the ice pack rather than the ice pack that would have been the likelier source of transmission. I think the likeliest explanation is the patient who had vaginal lesions with a second crop on the left labia, I believe, and was taken care of at one point by a health care giver who very shortly thereafter took care of Kim [plaintiff].

The possibility that the blasting caused the damage could reasonably be found “the most probable possibility disclosed by the evidence,” and blasting the most probable cause. Emery v. Tilo Roofing Company, 89 N.H. 165, 167, 195 A. 409, and cases cited. In the case before us the main defense was that plaintiff was infected with herpes before she was admitted to the hospital. There was no direct evidence of such an infection.

As with the plaintiff’s evidence, it depended on expert testimony. We read Dr. Kahn’s testimony to say that the probable cause of the infection was one or more acts of negligence by the hospital, and find that this conclusion, which was rationally supported and explained, is sufficient to establish causation even though the doctor could not identify a single cause as the more-likely-than-not cause of this infection. It follows, therefore, that the jury verdict that the plaintiff was infected with herpes while a patient at the Mary Hitchcock Memorial Hospital is unassailable on causation grounds. We have scoured the record and can find no question by plaintiff’s counsel on direct examination of Nurse Watkins asking “whether she had investigated the source of Kimberly F.’s [plaintiff’s] infection.” Nor have we been able to find any testimony by Nurse Watkins about her investigation on behalf of the Infections Committee. Nurse Watkins testified that plaintiff’s husband spoke to her in 1986 about the source of plaintiff’s infection. At that time he was employed by the Mary Hitchcock Memorial Hospital as an echocardiography technologist and knew Nurse Watkins as a co-worker.

Plaintiff’s husband knew that Nurse Watkins’ special responsibility was infection control and transmission of infectious diseases. According to Nurse Watkins, when plaintiff’s husband spoke to her he had three specific concerns: the use of ice packs, lack of cleanliness generally in the hospital, and the dirty bathtub. Nurse Watkins said she would look into it. She denied that the husband asked her “to inquire into a few things.” She never informed the husband about anything bearing on the source of plaintiff’s infection. Nor did she tell him that she would make an investigation for the hospital. Most of the direct examination of Nurse Watkins by plaintiff’s counsel focussed on the infection control procedures used at the hospital. A.

Well, it’s my job to look into the circumstances of the infection, with the primary being a focus to identify practices which could be improved to decrease the risk of similar infections in the future. Before we discuss the scope of the New Hampshire statute we also must point out another serious omission in the record. Defense counsel made no objection to any of the questions pertinent to this issue asked by plaintiff’s counsel. This was a waiver of the issue under Fed. R. Evid. 103(a)(1).

Nor is this omission cured because defendants had filed a motion in limine at the start of trial. Objections to questions must be made when the questions are asked. We also point out that there was not even a general objection to the line of questioning, although we do not suggest that this would have been sufficient to preserve defendants’ rights. II. Records of a hospital committee organized to evaluate matters relating to the care and treatment of patients or to reduce morbidity and mortality and testimony by hospital trustees, medical staff, employees, or other committee attendees relating to activities of the quality assurance committee shall be confidential and privileged and shall be protected from direct or indirect means of discovery, subpoena, or admission into evidence in any judicial or administrative proceeding, except that in the case of a legal action brought by a quality assurance committee to revoke or restrict a physician’s license or hospital staff privileges, or in a proceeding alleging repetitive malicious action and personal injury brought against a physician, a committee’s records shall be discoverable. Once, however, it is understood that the requisite committee structure and quality review function are present, our traditionally limiting approach to privilege claims must be honored by recognizing that the privilege does not go beyond the records of testimony, as such, to which the statute refers. As we observed before, a quality assurance committee’s attention does not place its subject matter beyond the bounds of discovery or disclosure in the normal course; the privilege is confined to the records and testimony described in the statute.

See N.H.S. Jour. 1410-14 (1981). Thus, the ordinary record of a patient’s treatment remains admissible as it always has been, even though a quality assurance committee may have studied that record and issued a report based on data culled from it. And a physician may still be obligated to testify about the course of a patient’s case, and to render a professional evaluation of the treatment, even though a quality assurance committee may already have elicited the same testimony on the same subject in the course of its own proceedings. I gave a figure to you in the opening, that I would suggest that you seriously consider as a full, fair, adequate and reasonable compensation for what they have suffered, what they are suffering and what they will suffer. And as I promised you then, I will say it again now.

I think I would suggest to you-not I think. What I think doesn’t count. I would suggest to you that on the evidence, one million five hundred thousand dollars for Kimberly and one million five hundred thousand dollars for John is adequate, fair, full and complete compensation for their interests. In Davis v. Browning-Ferris Industries, Inc., 898 F.2d 836 (1st Cir. 1990), we held that, even in a diversity case, the question of whether the amount of the ad damnum can be disclosed to the jury is a matter of procedure and therefore federal law applies. Id.

at 837. We went on to hold that such disclosure was improper. Id. at 837-38. THE COURT: Coming from the Common-wealth of Pennsylvania my ears stood straight up when I heard you mention the figures in your opening statement, but hearing no objection I assumed that probably was the practice in this jurisdiction. The court’s observation illustrates why counsel should object at the time an incorrect statement is made by opposing counsel. If an objection had been made to the ad damnum disclosure in the opening, there would have been time for some research by the court and counsel prior to closing argument, and it probably would have been ascertained that there was a First Circuit case that clearly controlled.

As it was, the court did not make a ruling until after defendants’ argument. It ruled that under New Hampshire law the ad damnum could be disclosed to the jury in final argument. We are faced, therefore, with a ruling based on the wrong law. This was due primarily to the neglect of both counsel. We would think that counsel would be aware of the controlling First Circuit cases by the time of trial. That plain error was committed is clear, but it is also clear that the error was harmless. The ad damnum was in the amount of one million five hundred dollars for each plaintiff.

The jury awarded plaintiff one hundred and twenty-five thousand dollars and her husband twenty-five thousand dollars. Clearly, the jury paid scant attention to the amount of the ad damnum. Under the circumstances, there is no point in sending the case back for a new trial.

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