Sample Motion for Summary Judgment on Standard of Care

ABOUT THIS FORM

This is a sample Motion for Partial Summary Judgment as to the applicable “standard of care” in a medical malpractice case. Summary judgment motions on the standard of care of common in complex medical malpractice cases. This motion seeks to establish that the applicable nursing standard of care is not disputed and that the plaintiff is entitled to judgment as to what the applicable standard is.


IN THE CIRCUIT COURT FOR BALTIMORE CITY

Plaintiff, Joe Smith, by and through his counsel, Rodney Gaston, and Miller and Zois, LLC, hereby files this Motion for Partial Summary Judgment Regarding the Nursing Standard of Care and in support thereof states as follows:

INTRODUCTION

This is a medical malpractice action that surrounds the care and treatment provided to Joe Smith (“Mr. Smith”), the Plaintiff, by Caroline Stelle, R.N. (“Nurse Stelle”), Acme Healthcare, Inc. (“Acme”), Patty Jackson, M.D. (“Dr. Jackson”), Kelly Jones, PA-C (“Jones”), and Maryland Provo-I Medical Services, P.C. (“Maryland Provo-I). Mr. Smith was injured on December 3, 2009, while working as a security guard when a retractable barrier gate suddenly shot up out of the ground injuring the popliteal artery in his left leg. He was immediately taken by ambulance to Acme Hospital where the healthcare providers failed to properly diagnose and treat his popliteal injury. On December 5, 2009, Mr. Smith returned to Acme Hospital with severe ischemia of the left leg. Unfortunately, his leg was unable to be salvaged and it was amputated just above the left knee.

Plaintiff now moves for summary judgment regarding the nursing standard of care. Assuming the jury finds that Mr. Smith complained to the nurses at Acme on December 3, 2009 that his left leg was numb and cold to touch, there is no genuine issue of material fact that the nursing standard of care requires a nurse to document this condition in the medical record and report it to either a physician or physician assistant. This is the undisputed testimony of the nurses and nursing experts in this case. As a result, the Plaintiff is entitled to summary judgment on this issue as a matter of law.

UNDISPUTED FACTS

It is undisputed that Mr. Smith injured the popliteal artery in his left leg on December 3, 2009 while working as a security guard when a barrier gate suddenly shot up out of the ground. Smith, Dep., p. 55, lines 6-22, p. 56, lines 1-5, attached as Exhibit 1.

It is undisputed that Mr. Smith was taken by ambulance to Acme for treatment of his left leg on December 3, 2009. Smith, Dep., p. 101, lines 14-22, p. 102, lines 1-12, attached as Exhibit 2.

It is undisputed that while at Acme Mr. Smith was examined and treated by Defendant Nurse Stelle.

It is undisputed that on December 3, 2009, Mr. Smith and his sister, Cory Elaine Smith, told Nurse Stelle that his left leg became numb and cold to touch. Joe Smith, Dep., p. 104, lines 7-12, attached as Exhibit. Cory Elaine Smith, Dep., p. 16, lines 18-19, attached as Exhibit.

It is undisputed that Nurse Stelle failed to document in Mr. Smith’s medical record that his left leg became numb and cold to touch.

It is undisputed that Nurse Stelle failed to tell any of the physicians or physician assistants at Acme that Mr. Smith’s left leg became numb and cold to touch.

Based upon the testimony of the nursing experts in this case it is undisputed that it would be a breach of the standard of care if a nurse failed to document in the medical record and tell another physician or physician assistant that a patient’s left leg became numb and cold to touch.  Wiegand Dep., p. 54, lines 8-14, attached as Exhibit. Weis Dep., p. 22, lines 7 -16, p. 28, lines 6-9, p. 32, lines 14-19, attached as Exhibit. Carlson, p. 93, lines 17 – p. 96, line 6.

Based upon the testimony of the nursing experts in this case it is undisputed that it would be a breach of the standard of care for a nurse to fail to document that Mr. Smith’s left leg became numb and cold to touch. Wiegand Dep., p. 54, lines 8-14, attached as Exhibit. Weis Dep., p. 22, lines 7 -16, p. 28, lines 6-9, p. 32, lines 14-19, attached as Exhibit. Carlson, p. 93, lines 17 – p. 96, line 6.

Based upon the testimony of the nursing experts in this case it is undisputed that it would be a breach of the standard of care for a nurse to fail to tell any of the physicians or other healthcare providers at Acme that Mr. Smith’s left leg became numb and cold to touch. Wiegnad, Dep., p. 54, lines 8-14, attached as Exhibit. Weis Dep., p. 22, lines 7 -16, p. 28, lines 6-9, p. 32, lines 14-19, attached as Exhibit. Carlson, p. 93, lines 17 – p. 96, line 6.

SUMMARY JUDGMENT STANDARD

“Any party may make a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.”  Md. Rule 2-501(a).  “The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.”  Md. Rule 2-501(f).

“A material fact is a fact the resolution of which will somehow affect the outcome of the case.” Jones v. Mid-Atl. Funding Co., 362 Md. 661, 675, 766 A.2d 617, 624 (2001) citing King, 303 Md. at 111, 492 A.2d at 614 (citing Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 8, 327 A.2d 502, 509 (1974)). The purpose of the summary judgment procedure is not to try the case or to decide the factual disputes, but to decide whether there is an issue of fact, which is sufficiently material to be tried. Jones v. Mid-Atl. Funding Co., 362 Md. 661, 675, 766 A.2d 617, 624 (2001).

ARGUMENT

Plaintiff is entitled to summary judgment regarding the standard of nursing care because there is no genuine issue of material fact as to the nursing standard of care when a patient complains that their leg suddenly became numb and cold to touch. Anita Weiss (“nurse Weiss”) is a registered nurse and was an employee of Acme at the time of her deposition. As such, she operated as an employee/agent of St. Agne and they are bound by her responses as a party admission. At her deposition, nurse Weiss testified that “if there is a change in the patient’s status either by what he tells–what I am told or what I observe, I would make a notation and – inform a provider.” Weis Dep., p. 28, lines 6-9, attached as Exhibit. Nurse Weiss further testified that had Mr. Smith reported that his foot was numb and cold to touch, she would have notified the physician of that statement. Weis Dep., p. 32, lines 14-19, attached as Exhibit.

This standard of care has also been reaffirmed by each nurse identified as an expert in this case. Linda Carlson is a registered nurse with many years of experience. At her deposition, she testified that it would be a breach of the standard of care if a nurse failed to document and communicate with another physician or healthcare provider that Mr. Smith’s left leg was numb and cold to touch. At her deposition, she testified as follows:

            P 93

17        Q  Ma’am, I’m going to ask you the question

            18        again.  It’s real simple.

            19        Did you read Mr. Smith’s deposition where he

            20        said a nurse came in, and he told the nurse that his

            21        foot was cold and he had no feeling in his foot,

            22        correct?

            P 94

            1          A  I believe that’s in his deposition, yes.

            2          Q  If you assume those facts to be true –

            3          A Uh-huh.

            4          Q  — under the standard of care, would that

            5          nurse, whoever it was, under the standard of care

            6          have the obligation to report that in a timely

            7          fashion to Mr. Smith’s physician?

            8          A  Yes.

            9          Q  And if that nurse failed to do that, would

            10        that be a breach of the standard of care?

            11        MS. MAGUIRE: Objection.  You can answer.

            12        A  Yes.  I guess so.  I mean –

            13        Q  Well, you can’t guess.

            14        A  You’re confusing me a little bit on this

            15        one.

            16        Q  If the standard of care requires you to do

            17        it, and they don’t do it, would that be a breach?

            18        MS. MAGUIRE: Hold on.  Your question was

            19        posed initially with respect to Mr. Smith’s

            20        deposition testimony.  So I think the question

            21        is under that scenario with Mr. Smith’s

            22        testimony in his deposition, whether that was a

            P 95

            1          breach in the standard of care.

            2          BY MR. GASTON:    Let me reask the question.

            3          BY MR. GASTON: 

            4          Q  I think we already established that if a

            5          nurse had came into Mr. Smith’s room, and

            6          Mr. Smith told the nurse, as he swore to under

            7          oath, his foot was cold, and he had no feeling in

            8          his foot, that we’ve established that the standard

            9          of nursing care would require that nurse to report

            10        that in a timely fashion to Mr. Smith’s physician,

            11        correct?

            12        A  Correct.

            13        Q  And if they didn’t do that, that nurse did

            14        not do that, then that would be a breach of the

            15        standard of care; would you agree?

            16        MS. MAGUIRE:  Objection

            17        A  I don’t know a nurse that wouldn’t do

            18        that.

            19        Q  So, would that be a breach of the standard

            20        of care if the nurse failed to do that?

            21        A  I guess you could say it would be.

            22        Q  It can’t be a guess, ma’am.  We can’t have

            P 96

            1          guessing here.  It’s either if

            2          A  But you’re giving me a hypothetical.

            3          Q  Yes, ma’am.  Assuming that that’s true,

            4          would it be a breach of the standard of care for the

            5          nurse not to report that to Mr. Smith’s physician?

            6.         A  Yes.

Carlson, Dep., P. 93, Line 17 through Page 96, Line 6, attached as Exhibit.

Debra Wiegand is a registered nurse designated to provide expert testimony in this case about the nursing standard of care. At her deposition, she testified as follows regarding the nursing standard of care if a patient complains their leg has become numb and cold to touch:

            P 55

            6          Q But my question is –

            7          A Okay.

            8          Q – if the information that Mr. Smith, in

9          accordance with his deposition testimony,

10        told the nurse that his foot was cold to touch

11        and he had no feeling, if that nurse did not

12        convey that to the physician’s assistant or the

13        doctor, would that have been a breach of the

14        standard of nursing care?

15        Ms. Maguire: Objection to the lack of fact

16        in the hypothetical. It’s an incomplete

Wiegnad, Dep., P. 55, Lines 8-22, P. 56, Line 1-6, attached as Exhibit.

In addition, Vickie Halstead is a registered nurse designated in this case to provide expert testimony regarding the nursing standard of care. She similarly testified that it would be breach of the standard of care if a nurse failed to document and report that a patient’s leg became numb and cold to touch. Her testimony was as follows:

            P 154

            18        BY MR. GASTON:

            19        Q. Okay. I thought your opinion also was, if

            20        you accept Mr. Smith and his sister’s

            21        testimony, that both the nurse – touch

            22        and had no feeling – that it was your

            23        opinion that the nurse then had to bring that

            24        to the attention of the a physician’s assistant

            25        or a physician. Did I understand your

            P 155opinion correctly?

Halstead, Dep., P. 154, Lines 19-25, P. 155, Lines 1-5, attached as Exhibit.

Based upon this testimony, there is no genuine issue of material fact regarding the nursing standard of care and the plaintiff is entitled to judgment as a matter of law. If the jury finds Mr. Smith complained to the nurses at Acme that his leg became numb and cold to touch, the standard of care required the nurses to document this condition in the medical record and report it to a physician or physician assistant. For these reasons, the Plaintiff moves for summary judgment on this issue regarding the nursing standard of care.

WHEREFORE: Because the Plaintiff has established that there is no genuine dispute for the issues presented in this motion for summary judgment, he respectfully requests that this Honorable Court grant her motion.