Wierzbicki et al v. The United States of America

Filing 69

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by U.S. District Judge Roberto A. Lange on 7/15/14. (DJP)

1

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
HONORA WIERZBICKI,

*

as the Special Administrator of the Estate

*

of Mary Josephine Jones,

*

CIV11-3021-RAL

*
*

FINDINGS OF FACT i

*

Plaintiff,

CONCLUSIONS OF Lj

*

vs.

*

THE UNITED STATES OF AMERICA,

*
*

Defendant.

*

From June 2 until June 4,2014, this Court conducted a court trial of this case. Under Rule
52 of the Federal Rules of Civil Procedure, this Court now enters these Findings of Fact and
Conclusions of Law.
I.

Findings of Fact
A.

The Parties and the Claims

Plaintiff Honora Wierzbicki (Wierzbicki) is the special administrator of the estate of her
mother Mary Josephine Jones (Mary). Mary died on October 23, 2009, as the result of a head

injury sustained when she fell at the Indian Health Services Medical Center at Rosebud, South
Dakota (Rosebud IHS). Trial Ex. 31: Trial Ex. 49. Rosebud IHS is an agency of the United States
government.

Accordingly, Wierzbicki brings her claim under the Federal Tort Claims Act

(FTCA), 28 U.S.C. § 1346.

Wierzbicki on July 7,2010, submitted a claim for damage, injury, or death to Indian Health
Services relating to Mary's death. Trial Ex. 51.

In the "Basis of Claim" section, Wierzbicki

alleged that
Mary got out of bed to use the bathroom, the call button was at

Mary's fingertips and in all likelihood she pressed the button and
waited until she couldn't wait any longer and then attempted to
make the trip to the bathroom alone. During this fatal trip to the

bathroom, Mary fell and hit her head on the commode.

On the

night Mary fell, her bed rails were left down, no one answered her
call light in a timely manner, and she was allowed to move from
her bed unassisted. The fall prevention measures set up for Mary
failed, leading to her fatal fall.
Trial Ex. 51. Some of this same language appears in the allegations of Wierzbicki's Complaint

although the Complaint alleges negligence more generally on the part of Rosebud IHS nursing
staff. See Doc. 1 at fflj 8-9.
The Government contends that it was not negligent and asserts that Wierzbicki is barred

from recovery because Mary was contributorily negligent or, alternatively, assumed the risk of
injury. Doc. 5; Doc. 63. The Government also contests the damage claims made by Wierzbicki.
Doc. 5; Doc. 63.
B.

Mary's Hospitalization at Rosebud IHS

Mary was born on October 4, 1922, and thus was 87 years old during the time of the

hospitalization at question. Trial Ex. 55; Trial Ex. 101 at 18. On the evening of October 17,2009,
Mary went to the emergency room of Rosebud IHS reporting that she had been dizzy and
nauseated for three days and that she had fallen four times at home that day. Trial Ex. 101 at 9-10,
50. Mary had a long history of heart problems and was on multiple medications, some of which

had possible side effects of causing dizziness.

See Trial Ex. 110 at 3-4, 50; Trial Ex. 118.

Emergency room physician John T. Benson evaluated Mary, observed that she was dizzy and

unsteady upon standing, ordered certain tests, could not determine the exact cause of the dizziness,
and chose to admit Mary to the Rosebud IHS for evaluation of her condition. Trial Ex. 101 at 7-9.
Ruth Heinert (Heinert) was the nurse at Rosebud IHS who completed the admission form
with Mary and who cared for Mary during the night shift of October 17 and 18, 2009. Trial Ex.
101 at 50-51. Nurse Heinert was relatively new as a nurse, having received her registered nursing

degree in 2008 and having joined Rosebud IHS in June of 2009. Nurse Heinert recorded that Mary
had "acute dizziness and atoxic gait." Trial Ex. 101 at 9. Nurse Heinert recorded that Mary had
been dizzy and nauseated for three days, had fallen four times at home, had an unsteady gait, had
bumps from prior falls, and appeared to have slurred speech at times. Trial Ex. 101 at 9-12, 50.
Nurse Heinert completed a form that assessed Mary as "At Risk" for falls, noted Mary to be an
"Actual

Risk

of

Injury"

as

part

of

her

nursing

diagnosis,

and

initiated

"Fall

Prevention/Monitoring." Trial Ex. 101 at 9, 13. The fall prevention measures included having
Mary's hospital bed in the lowest position, having the bed wheels locked, instructing Mary on use
of her call light, having the call light signal within her reach, instituting use of a bedside commode,
and placement of Mary in Room 144. Room 144 is located close to the nurses' station and is one
of the two patient rooms in the medical and surgical wing where a person sitting at the nurses'
station can see a patient's torso in the hospital bed within the patient room. No physician placed
Mary on one-to-one nursing care. Mary was not suffering from dementia and was not a suicide
risk, where some form of physical restraint might be appropriately considered.
At the time of Mary's hospitalization, Rosebud IHS had adopted Lippincott's Nursing
Procedures (5th Edition) to replace certain other nursing policies. Trial Ex. 103; Trial Ex. 104.

Among the policies replaced through adoption of Lippincott's Nursing Procedures was a fall
precaution policy from August of 2005 that was last revised in December of 2006 (August of 2005
Policy). Trial Ex. 64. Under the August of 2005 Policy, Rosebud IHS was to use bed alarms as
a fall precaution and to employ a formal scoring system in assessing whether patients were fall

risks. Trial Ex. 64. Rosebud IHS in fact had bed alarms at the time of Mary's hospitalization in
October of 2009, but the bed alarms were not working in October of 2009 and had not been

working since at least 2008. Rosebud IHS had another policy in place at the time "to assure that

all clinical alarms and medical equipment alarm systems utilized for patient care are properly
operational

" Trial Ex. 61 at 72-73. Because the bed alarms were not operational in October

of 2009, they were not utilized for patient care during Mary's hospitalization. Nursing staff were
aware that the bed alarms did not work and at least one of the nurses had complained to Rosebud
IHS management about the non-functioning bed alarms. Remarkably, the director of nursing at
Rosebud IHS at the time was unaware in October of 2009 that the bed alarms had stopped
working.

Lippincott's Nursing Procedures, the policy in effect at Rosebud IHS during Mary's
hospitalization, did not require bed alarms as a part of the "Fall Prevention and Management"
procedures. See Trial Ex. 103 at 63-68. However, Lippincott's Nursing Procedures references
recommendations from the Center for Disease Control and Prevention for preventing falls in

elderly patients including the use of "technological devices, such as alarm systems, that are

activated when patients get out of bed." Trial Ex. 103 at 64. Lippincott's Nursing Procedures also
sets forth the Morse Fall Scale, a formal scoring system, as "one method" of assessing a patient's

likelihood of falling. Trial Ex. 103 at 64. Rosebud IHS did not use the Morse Fall Scale in
evaluating Mary as being "At Risk;" if the Morse Fall Scale had been used, Mary would have
scored as a "high risk of falling." Although Wierzbicki makes much of the failure to use the Morse
Fall Scale or the scoring under the previous August of 2005 Policy, and likewise makes much of

the failure of formal reassessment under such a scoring methodology, nursing staff at Rosebud IHS
clearly identified Mary upon her admission as being "At Risk" for falling and an "Actual Risk of
Injury," informally reassessed her frequently, and never viewed her as anything other than
remaining "At Risk" for falling throughout her hospitalization. Trial Ex. 101 at 9-13.
At the time of her admission, Mary was "oriented times three," meaning she was oriented

to person, place, and time. Trial Ex. 101 at 58 (noting that the patient was "0x3"). Mary received

instruction on the use of the call light and verbalized to Nurse Heinert an understanding that she
needed to use the call light for assistance.

Mary initially was on a telemetry system with an

intravenous (IV) drip.

Nurse Bonnie Westcott (Westcott) was responsible for Mary's nursing care during the day

shift of October 18, 2009. Nurse Westcott was aware that Mary was on the fall precautions. See
Trial Ex. 101 at 51. Mary was able to use the call light and did not demonstrate behavior that
made Nurse Westcott concerned for Mary's mental state during the October 18 day shift. See Trial
Ex. 101 at 51, 60-61.

Nurse Heinert worked the night shift of October 18 and 19, 2009, during which she

provided nursing care to Mary. Mary reported that she was feeling better, but still was dizzy. Trial
Ex. 101 at 51. Mary remained on telemetry with use of the bedside commode. Trial Ex. 101 at
51-52.

Fall precautions remained in place.

Trial Ex. 101 at 51-52.

During the night, Mary

became confused and was not oriented to time or place, but Nurse Heinert reoriented Mary. Trial
Ex. 101 at 51, 60. At other times during the night, Mary was oriented only to person and place,

although lack of orientation to time is not uncommon for elderly patients in the middle of the night.
At one point in the night, Mary was sitting at her bedside, which concerned Nurse Heinert and

prompted Nurse Heinert to reenforce the need for Mary to remain in bed and to call for assistance
to get up. Trial Ex. 101 at 52.

During the day of October 19, 2009, physical therapist Amy Reindl (Reindl) visited Mary
to assess her. Reindl had provided past care to Mary for other conditions. Reindl used a gait belt
to walk with Mary. Reindl noticed that Mary was unstable while walking. Trial Ex. 101 at 52.

Mary did better when Reindl introduced a front-wheel walker and indeed was able to walk one-

hundred feet with the walker. Trial Ex. 101 at 52. During Reindl's assessment, Mary verbalized

that she knew herself to be a risk of falling. Trial Ex. 101 at 52. Reindl recommended that Mary
remain in the hospital. Trial Ex. 101 at 52.

During the night shift of October 19 and 20, 2009, Theresa Kelley (Kelley) provided

nursing care to Mary. Mary remained on telemetry with the use of a bedside commode at the time.
Nurse Kelley knew that Mary was a fall risk at the time she took over the care for Mary. Mary did

not have family staying with her; her daughter Wierzbicki' lived in California and was in touch
with Mary and was following her care by telephone. Nurse Kelley took it upon herself to spend
extra time with Mary, charting in Mary's room when Mary was oriented only to person and place
in the middle of the night. See Trial Ex. 101 at 62. When Mary awakened in the midst of the
night, Nurse Kelley gave her the task of folding wash cloths to keep Mary occupied during times
when Nurse Kelley checked other patients. At one point during her care for Mary, Nurse Kelley
observed Mary sitting at bedside, oriented to person, place, and time. Nurse Kelley instructed
Mary on the use of the call light, which Mary understood.
During the day of October 20, 2009, Reindl again visited Mary. Mary reported that she

was feeling better, but was continuing to have dizziness when standing up and was concerned with
her balance. Trial Ex. 101 at 53. Reindl reenforced that Mary was not to get up without assistance
from the nurses. Telemetry had been discontinued on October 20, and use of a bedside commode
likewise was discontinued.

'Wierzbicki was close to her mother Mary, speaking with her mother regularly by phone in
lengthy conversations. The Government sought to characterize Wierzbicki's relationship with Mary
as distant. There was geographic distance in the relationship with Mary living in South Dakota and
Wierzbicki living in California without the two seeing each other in person very often. Wierzbicki,
however, was a loyal and caring daughter to Mary, such that it is unfair to characterize the relationship
as a distant one.
6

Nurse Kelley again provided nursing care for Mary on the night of October 20 and 21.

Mary was able to get out of bed with Nurse Kelley's assistance and used the walker in getting to

the bathroom. Mary was better oriented than she had been the prior night. See Trial Ex. 101 at 64.

During the day shift of October 21, 2009, Nurse Monica Pochop2 provided nursing care
to Mary. Nurse Pochop was aware that Mary was on fall precautions and instructed Mary to use

her call button for assistance. Mary in fact used her call button during the time Nurse Pochop was
caring for her. Mary reported that she sometimes felt a little dizzy when she first sat up but then
the dizziness went away. Trial Ex. 101 at 54. Mary was alert and oriented throughout Nurse
Pochop's time of caring for her. Trial Ex. 101 at 54-55, 66. Nurse Pochop had no concern about
Mary's understanding or mental ability and perceived no need for constant monitoring of Mary at
that point.

During the day of October 21, 2009, Wanblee Guerue, the social service representative at
Rosebud IHS, visited and talked with Mary for seventy-five to eighty minutes. Trial Ex. 101 at
31. During the visit, Mary was sitting up on her bed edge and was alert and oriented. Guerue

spoke with Mary about Mary residing at the White River Nursing Home, which was prepared to
accept her on October 26. Mary was receptive to doing so and said that her doctor had advised that
she needed to be in a nursing home. Guerue recorded that Mary said, "Wanblee, I'm giving up my

independence ...[.] I don't want to go home either[.] I'm afraid cause I keep falling, I might kill
myself if I keep falling."

Trial Ex. 101 at 31.

Mary had been a very independent person

throughout her life.

C.

Circumstances of Mary's Fall at Rosebud IHS

Nurse Westcott, who had provided nursing care on the second night that Mary was at

2Monica Pochop married and is now know as Monica Oldenkamp.
7

Rosebud IHS, was responsible for Mary's nursing care from the evening of October 21 until the
day shift of October 22, 2009. Nurse Crystal Shields (Shields) and one other nurse worked the

night shift with Nurse Westcott on the medical and surgical wing where Mary was hospitalized.
Patient census data indicated that there were a total of eleven patients that night in the medical and
surgical wing of Rosebud IHS. See Trial Ex. 119.

Nurse Westcott knew that Mary remained on fall precautions as a fall risk. Nurse Westcott
checked on Mary on several occasions throughout the shift. At 10:30 p.m., on October 21, 2009,
Nurse Westcott recorded that Mary said that she was feeling better and that she was going to take
Amitriptyline, an antidepressant that apparently helped Mary sleep and has a known side effect of
dizziness. See Trial Ex. 101 at 55. Nurse Westcott recorded that Mary was alert and oriented to
person and place. See Trial Ex. 101 at 55. Nurse Westcott helped Mary use the bathroom, which
Mary accessed using her walker with Nurse Westcott's assistance. Trial Ex. 101 at 55. Nurse

Westcott recorded that Mary remained on fall precautions and was at risk of injury due to an
unsteady gait. Trial Ex. 101 at 55. Nurse Westcott checked on Mary periodically thereafter, but
did not remain in Mary's room.

The last charting done by Nurse Westcott before Mary's fall is at 0400—that is, 4:00
a.m.—on October 22, 2009. Trial Ex. 101 at 66-67. Nurse Westcott assessed Mary at that time
and recorded Mary's vital signs. Trial Ex. 101 at 66-67. Nurse Westcott recorded that Mary was

alert and oriented times three. Trial Ex. 101 at 66. Mary wanted to go to the bathroom, so Nurse
Westcott helped her stand and helped her use the walker to go to the bathroom. Nurse Westcott

remained in the bathroom while Mary went, helped her off of the toilet, and assisted her back into
bed. Throughout this time, Mary was wearing slippers provided by Rosebud IHS with rubber grips
on the bottom. Nurse Westcott left Mary in bed, with the side rails up, the bed in the lowest

position with wheels locked, and with Mary's call light within reach.

Mary remained in Room

144, with her upper torso and upper part of her bed visible from the nurses' station.

Nurse

Westcott recorded that Mary was "steady with walker." Trial Ex. 101 at 66-67.

Westcott then returned to the desk to do the charting. Upon completing the charting, Nurse
Westcott asked Nurse Shields to "keep an eye" on Mary for her. Nurse Westcott then walked

down the hall, through some doors, checked on certain obstetrical equipment as a courtesy to other
nurses, used the bathroom, and obtained a cup of coffee. Rosebud IHS is not a large facility and

the places that Nurse Westcott visited were not far from the medical and surgical wing. Upon
returning to the medical and surgical wing, Nurse Westcott either saw Nurse Shields entering
Mary's room or heard Nurse Shields in Mary's room, and then assisted Nurse Shields.
During the time Nurse Westcott was gone from the medical and surgical wing, Nurse
Shields remained at the nurses' station. Nurse Shields was not looking directly into Mary's room,
which would be at approximately a two-o'clock position from the nurses' station, but heard a noise
from Mary's room that she thought could have been a fall. Nurse Shields got up, went into Mary's
room, and found Mary lying on the bathroom floor. Nurse Shields did not witness Mary's fall nor

see her getting out of bed. No call light had gone off from Mary's room, and Nurse Shields saw
no call light on within Mary's room. Nurse Shields prepared an incident report concerning the fall,

but did no charting concerning Mary's care. Nurse Shields left the employment of Rosebud IHS
for a different nursing job and had a limited recollection of certain details, such as what she was
doing at the nurses' station or what Nurse Westcott had instructed her to do.

Although the

testimony about distances involved was less than precise, it appears that Mary's route from her bed
to the area where she fell probably was about 15 to 20 feet, while the distance from the nurses'
station to the area where Mary fell appears to be perhaps three or four times as far. See Trial Exs.

14, 15,20,22,23,30,31,32,33.

Nurse Westcott made the chart entries regarding Mary's fall. Nurse Westcott recorded the
fall as occurring at 0410—that is, just ten minutes after Nurse Westcott had concluded her previous
care for Mary. Trial Ex. 101 at 55. Mary was on the bathroom floor and was able to move all
extremities. Trial Ex. 101 at 55. Mary said, "I thought I -1 just had to go." Trial Ex. 101 at 55.
Mary complained of pain in her left knee and elbow and had an abrasion on her forehead as well.

Trial Ex. 101 at 55-56. Mary was conscious, talking, and making sense. The two nurses assisted
Mary in getting back to her bed. Nurse Westcott contacted Dr. Benson, who was working in the
emergency room and who then evaluated Mary in her room. Dr. Benson found that Mary looked
normal, had normal mentation, and reported wrist and knee pain. Mary appeared to be stable to

him. Dr. Benson ordered x-rays and a CT scan, and then returned to the emergency room to care
for other patients. See Trial Ex. 101 at 56-57.
Mary returned to the medical surgical wing around 6:00 a.m. on October 22, 2009, after

she had undergone a CT scan and x-ray. Trial Ex. 101 at 56. Nurse Westcott observed that Mary
was sweating profusely and that Mary's condition was deteriorating. Trial Ex. 101 at 56. Nurse
Westcott took Mary to the emergency room, where Mary then lost consciousness. Dr. Benson

provided care, consulted with a neurosurgeon, intubated Mary, and arranged for her to be flown
to Sanford Hospital in Sioux Falls where she could receive levels of care not available at Rosebud
IHS. Mary did not regain consciousness and died at Sanford Hospital on October 23,2009. Mary

had sustained a subdural hematoma as a result of her fall, with intracranial bleeding aggravated by
Mary being on a blood thinning medication. The amount of blood and bleeding within Mary's
skull caused her brain to compress and ultimately resulted in her death.

Wierzbicki's initial claim to the Government and Complaint asserted that her bed rails were

10

left down and that there was other such nursing malfeasance. Trial Ex. 51; Doc. 1 at fflf 8-9. At

trial, Wierzbicki's attorney argued that the nursing records had been altered and that nursing
malpractice occurred that was intentionally omitted from the records.

This Court had an

opportunity to observe the manner of the nurses while testifying and found all of the nurses,
including Nurse Westcott, to be credible. There is some question whether Nurse Westcott could

have done all that she reported—charting, checking obstetrical equipment, going to the bathroom,
and getting coffee—in the ten-minute period between when she recorded her 4:00 a.m. check on
Mary and when she returned to record the fall at 4:10 a.m. However, there is no evidence that

nursing records were altered or that nursing malfeasance somehow was omitted from the nurses'
records.

In short, Nurse Westcott had taken Mary to the bathroom and then left Mary in bed with

the side rails up, wheels locked, and the call light within Mary's reach. After Nurse Westcott left,
Mary evidently sat up in bed, then got to her feet and used the walker to go back to the bathroom
where she then fell. Mary was alert and oriented when Nurse Westcott left her and indeed was

alert and oriented even after she fell and hit her head. Meanwhile, Nurse Shields, whom Nurse
Westcott told to "keep an eye" on Mary, did not take that statement literally and was at the nearby
nurses station when Mary fell, arriving to assist Mary just after the fall.
D.

Expert Testimony

Wierzbicki's nursing expert, Jacque Hight, is a certified legal nurse consultant, a nursing
care coordinator at a 40-bed hospital in South Dakota, and a nurse since 1999. Hight's principal

criticism of Rosebud IHS nursing care is that the fall precautions instituted for Mary's care are
universal precautions that apply to all hospitalized patients and are not sufficient for a high fall risk
patient. That is, having the bed in the lowest position, the wheels locked, the side rails up, a safe

11

surrounding environment, and a call light available are standard precautions that did not take into

account that Mary was a high fall risk. Hight is critical that the facility did not provide the ability
to do anything more, such as employ functioning bed alarms. However, Hight stopped short of
saying that functioning bed alarms must be in place for the standard of care to be met. Rather,

Hight's testimony was that some additional intervention—whether bed alarms, rounding every

fifteen minutes on Mary, or having a "sitter" within the room—was necessary under the standard
of care.

Hight acknowledged that patients can fall without nursing negligence and with adequate
precautions being undertaken. Nurse Hight also acknowledged that bed alarms can malfunction

at times and can give a false positive alarm at other times. However, it remained Hight's opinion
that Rosebud IHS failed to provide the appropriate standard of care to Mary under Lippincott's
Nursing Procedures and standard policies.

Hight characterized this claimed lack of care as a

"substantial factor in producing injury."

The Government's nursing expert, Peggy Hettick, has been in nursing since 1978, but does

not have a background of providing direct nursing care for patients who are at high risk of falling.
Hettick conducted a very thorough review of Mary's medical records throughout her life and

testified to the longstanding medical issues that Mary had. Hettick proffered an explanation of why
Mary, apparently ten minutes or so after having gone to the bathroom, might feel the need to go

again. Because of Mary's past medical conditions and care, including a hysterectomy, Mary may
have been unable to completely empty her bladder upon going at 4:00 a.m. and felt the urge to go
again shortly thereafter.

Hettick drew the standard of care from the 2009 Joint Commission Hospital National
Patient Safety Goals that are:

12

1.

The hospital establishes a fall reduction program.

2.

The fall reduction program includes an evaluation

appropriate to the patient population, settings, and
services provided.

3.

The fall reduction program includes interventions
to reduce the patient's fall risk factors.

4.

Staff receives education and training for the fall
reduction program.

5.

The hospital educates the patient, and their family
as needed, on the fall reduction program and any

individualized fall reduction strategies.

6.

The hospital evaluates the fall reduction program to
determine the effectiveness of the program.

Trial Ex. 110 at 4-5. Hettick opined that Rosebud IHS met this standard. Hettick's unnecessary
defensiveness and combativeness on cross-examination, together with her absence of being in a
position of providing care for those at high risk of falls, tends to make the Court discount her
expert testimony somewhat.

Because the absence of functioning bed alarms was a central issue in the case, the
Government produced a fascinating expert, Ronald Shorr, M.D.

Dr. Shorr is a professor of

epidemiology, with an internal medicine specialty and a geriatrics sub-specialty. Much of Dr.

Shorr's career has been focused on medical research. Among the wide variety of scholarly articles
authored or co-authored by Dr. Shorr is one published by the American College of Physicians in

its journal Annals of Internal Medicine entitled "Effects of an Intervention to Increase Bed Alarm
Use to Prevent Falls in Hospitalized Patients." Trial Ex. 115. Dr. Shorr became interested in the
question of whether bed alarms were effective as a fall prevention device. Dr. Shorr received a

grant from the National Institutes of Health in 2004 for the study and collected data until 2009,
employing a cluster randomized study approach.

Dr. Shorr concluded based on the data that

increased use of bed alarms had no discemable effect on reducing the number of falls or injurious
falls in patient populations. Or to put it as his 2012 article did:

13

In summary, although our intervention to increase bed alarm use
increased use in intervention nursing units, there was little

evidence of an effect on fall-related events or an effect on physical
restraint use in intervention compared with controlled nursing
units.

Trial Ex. 115 at 698. However, Dr. Shorr allowed that "although bed alarms may yet prove useful
as a part of a well-defined fall prevention program, hospitals should temper expectations that their
use will provide a simple and cost-effective solution to the problem of falls." Trial Ex. 115 at 698.
There are relatively few published studies on the efficacy of bed alarms. Subsequent to Dr.
Shorr's study results being published, a group from the United Kingdom, using a different
methodology, corroborated Dr. Shorr's conclusion. See Trial Ex. 124. That article in the abstract

for conclusions surmised that
bed and bedside chair pressure sensors as a single intervention

strategy do not reduce in-patient bedside falls, time to first bedside
fall and are not cost-effective in elderly patients in acute, general
medical wards in the UK.
Trial Ex. 124 at 247. That article, however, posited "[i]t is also possible that alarms may prevent
some falls away from the bedside, as patients may have gone beyond the bedside area by the time

nurses can respond to radio-pagers." Trial Ex. 124 at 251.
Bed alarms are designed to alert nursing staff when a patient at risk of falling has left the
bed, and thus a bed alarm's purpose to reduce falls.

Thus, it is somewhat curious and

counterintuitive that studies indicate that use of bed alarms has no statistical correlation to
reduction of patient falls. There are several possible reasons for this apparent anomaly. First, bed
alarms produce many false alarms resulting in some "alarm fatigue" with hospital staff responding
to so many false alarms from various medical equipment that their responses become delayed or

they are in different patient rooms dealing with an alarm.

Second, bed alarms do not always

present an alarm in time to prevent a fall. Bed alarms customarily work based on a sensor pad on
14

or within the bed. If the patient's weight is not on the sensor pad, such as the patient has rolled to
the far side of the bed to reach for an object or has sat up, the bed alarm may sound. Bed alarms

sometimes work on a four or eight second delay, as an effort to reduce the number of "false
positive" alarms from a patient simply shifting position. Once the alarm sounds, it continues until
it is shut off. Bed alarms obviously cannot prevent falls when a patient falls immediately out of

bed or within a short time of getting out of bed, such that nursing staff cannot get to the patient
quickly enough.

Ifthere is a circumstance where current bed alarm technology holds promise for preventing

a fall, it is, as the UK study posited, the instance where a patient at risk of falling gets up out of bed
and moves about without falling long enough for nursing staff to respond to the alarm and get to
the patient. Dr. Shorr's study and the UK study suggest that these incidents appear to be rare. It

is debatable whether Mary's fall fits into this category; she had gotten out of bed and walked
perhaps fifteen feet to her bathroom using a walker before she fell.
II.

Conclusions of Law
A.

Choice of Law

Wierzbicki brings this negligence action under the FTCA, 28 U.S.C. § 1346. TheFTCA
waives the Government's sovereign immunity protection and gives federal district courts
jurisdiction over FTCA suits for claims -

for injury or loss of property, or personal injury or death caused by
the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(l).

When, as here, the FTCA action arises at an Indian Health Services facility within the
15

territory of an American Indian Reservation, the substantive law of the state in which the
reservation is located applies. See LaFromboise v. Leavitt. 439 F.3d 792, 796 (8th Cir. 2006).
Because Rosebud IHS is located within South Dakota, the substantive law of the state of South
Dakota governs this action.

B.

Standard of Care for Nursing Malpractice in South Dakota

In South Dakota, the "standard of care to which a hospital must comply is to provide that
care which is available at hospitals within the same or similar communities." Wuest ex rel. Carver
v. McKennan Hosp.. 619 N.W.2d 682, 689 (S.D. 2000) (citing Shambureer v. Behrens. 418

N.W.2d 299, 306 (S.D. 1988)): see also Koenieuer v. Eckrich. 422 N.W.2d 600, 602 (S.D. 1988)
(noting that the standard of care hospitals are measured against is the care available in same or
similar communities). In malpractice actions against hospitals based on the negligence of the
nursing staff, such as Wierzbicki's claim, the relevant inquiry is whether the nurses provided

reasonable care and exercised professional judgment under the circumstances. Koeniguer. 422
N.W.2d at 602. Individual internal hospital policies are not determinative of the standard of care
required. Wuest. 619 N.W.2d at 689. Under South Dakota law, the standard of care typically must
be established through expert testimony. Koeniguer. 422 N.W.2d at 601.

Some of Wierzbicki's claims of breach of the nursing standard of care—such as that the

nurses left Mary on the toilet, failed to respond to her call light, left her bed rails down, and

falsified nursing records—have no support in the evidence. For this Court to accept any of those

proffered arguments for breach of the standard of care, this Court would have to surmise that one
or more Rosebud IHS nurses perjured themselves during the trial. In evaluating the credibility of
a witness, a court considers

the witness's intelligence, the opportunity the witness had to have
seen or heard the things testified about, the witness's memory, any

16

motives that witness may have for testifying a certain way, the

manner of the witness while testifying, whether that witness said
something different at an earlier time, the general reasonableness
of the testimony, and the extent to which the testimony is
consistent with any [other] evidence ....
United States v. Moore. 978 F.2d 1029,1032 (8th Cir. 19921: see also United States v. J.D.P.. 909

F. Supp. 2d 1136, 1144 (D.S.D. 2012). Having evaluated the credibility of the witnesses under
this standard, this Court concludes that no witness at trial committed perjury or knowingly testified
falsely.

Wierzbicki's best argument for breach of the standard of care is that Rosebud IHS did not
do enough by way of fall precautions in its care for Mary.

Rosebud IHS took the standard

precautions, such as having Mary's hospital bed in the lowest position, the wheels of the bed
locked, the side rails up, and the call button within Mary's reach with Mary instructed on use of

the call light. The only additional precautions that Rosebud IHS undertook were ensuring that all
nurses were cognizant of Mary being a fall risk and placing Mary in Room 144, which was near

to the nurses' station and was one of the two rooms the hospital bed can be seen from the nurses'

station. The Rosebud IHS nursing staff did not have the benefit of functioning bed alarms, and the
only other options for increased fall precautions available to the nursing staff were using a "sitter"

(which was not ordered by the physician or was not necessary for Mary's care) or more frequent
checks on Mary. Under the circumstances, it is a close call on whether Rosebud IHS—by not

having functioning bed alarms and not checking on Mary more frequently—breached the standard
of care. Ultimately, Wierzbicki bears the burden of proof that the standard of care was breached,
and this Court concludes that Wierzbicki has not sustained that burden of proof.
C.

Causation

Wierzbicki's claim fails for another reason as well. Wierzbicki has the burden of proof by

17

a preponderance of the evidence under South Dakota law that any breach of the standard of care
was a cause or proximate cause of Mary's injury. Hertz Motel v. Ross Signs, 698 N.W.2d 532,

535 (S.D. 2005). A legal or proximate cause under South Dakota law means a cause which, in the
natural and probable sequence, produces the injury complained of. Id at 537; see also Estate of
Gaspar v. Vogt. Brown & Merry. 670 N.W.2d 918, 921 (S.D. 2003); Zareckv v. Thompson. 634
N.W.2d 311,316 (S.D. 2001). For a legal or proximate cause to exist under South Dakota law,

the harm suffered must be a foreseeable consequence of the act complained of.

N.W.2d at 316.

Zarecky. 634

In other words, liability cannot be based on mere speculative possibilities or

circumstances and conditions remotely connected to the events leading up to an injury.

The

defendant's conduct must have such an effect in producing the harm as to lead reasonable people
to regard it as a cause of the plaintiffs injury. See Estate of Gaspar. 670 N.W.2d at 921; Zarecky.
634 N.W.2d at 316; Wuest, 619 N.W.2d at 689. The legal cause need not be the only cause, nor
the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time,
which in combination with it causes the injury. However, for the legal cause to exist, it must be

a "substantial factor in bringing about the harm." Zareckv. 634 N.W.2d at 316 (internal quotation
marks, citation, and emphasis omitted); see also Shippen v. Parrott. 553 N.W.2d 503, 508 (S.D.
1996) (citing Therkildsen v. Fisher Beverage. 545 N.W.2d 834, 837 (S.D. 1996)).
In light of the studies suggesting that bed alarm use does not result in a reduction of falls,

it is difficult to presume that the absence of a functioning bed alarm was the legal or proximate
cause of Mary's fall. This Court is left to engage in a certain amount of speculation about whether
a four-second or eight-second delay may have been used with respect to a bed alarm that might
exist at Rosebud IHS and about whether Nurse Shields at the nurses' station could have responded
quickly enough had a bed alarm sounded to intercept Mary before she fell in the bathroom.

18

Likewise, this Court cannot conclude by a preponderance of the evidence that more frequent
checks on Mary would have prevented the fall. After all, Nurse Westcott had checked on Mary
shortly before—ten minutes before the fall if the times recorded in her notes are taken as
accurate—and had left Mary at a time when Mary was alert and oriented to person, place, and time,
was in bed, had the side rails up, and had the call light switch within reach. Thus, Wierzbicki has
not sustained her burden of proof on causation.
D.

Affirmative Defenses

Even if Wierzbicki had shown that Rosebud IHS breached the standard of care and that
breach was a direct cause of Mary's fall, Wierzbicki's claim has another obstacle in the
Government's affirmative defense of contributory negligence.

Under South Dakota law,

" [contributory negligence is negligence on the part of a plaintiff which, when combined with the
negligence of a defendant, contributes as a legal cause in the bringing about of the injury to the
plaintiff." Klutman v. Sioux Falls Storm. 769 N.W.2d 440, 450 (S.D. 2009) (quoting Steffen v.
Schwan's Sales Enters.. Inc.. 713 N.W.2d614, 619 (S.D. 2006)). Contributory negligence can be
an affirmative defense in a professional negligence action. See Dodson v. S.D. Dep't of Human
Servs.. 703 N.W.2d 353, 355 (S.D. 2005).

South Dakota law is unique in that contributory

negligence bars recovery if that contributory negligence is "more than slight" in comparison to the
negligence of the defendant. Wood v. City of Crooks. 559 N.W.2d 558, 560 (S.D. 1997). If a
plaintiffs contributory negligence is less than slight or only slight in comparison with the
negligence of the defendant, that plaintiff may still recover damages under South Dakota law. S.D.

Codified Laws § 20-9-2; see also Owen v. United States. 645 F. Supp. 2d 806, 827 (D.S.D. 2009).
Because contributory negligence is an' affirmative defense, the Government bears the burden of

proof by a preponderance of the evidence on the issue. Johnson v. Armfield. 672 N. W.2d 478,481

19

(S.D. 2003).

To be clear, Mary did nothing inherently wrong in getting up on her own to go to the
bathroom. However, Mary knew that she was at risk of falling, and had voiced her knowledge of

that risk on multiple prior occasions to Rosebud IHS staff. Mary had been instructed on multiple
occasions to use her call light if and when she needed assistance. Mary knew that nurses were on
staff to help her. Having been in the hospital for four days, Mary would have known that the way
of getting assistance from nursing staff was the use of the call light, which she had used in the past,
rather than expecting a bed alarm to sound or expecting nursing staff to actually be in the room
with her or have eyes on her at all times.
Wierzbicki at trial argued that Mary was disoriented when she got up and her mental state
was such that she cannot be deemed responsible for that choice. Mary did have occasions when
she was not oriented times three (that is, oriented to person, place, and time) and had taken

Amitriptyline, a medication that can cause dizziness and confusion. However, Mary was oriented
times three when Nnurse Westcott had last checked on her, Mary was coherent when found on the
floor to the point of indicating where she hurt and explaining that she had gotten up because she
just felt that she had to go, and Mary demonstrated normal mentation to Dr. Benson when he later
arrived to check on her in her room. Thus, the evidence indicates that Mary was not confused and
disoriented at the time she fell, although she probably did become dizzy causing the fall. Prior to
the point where the intracranial bleeding affected her functioning and consciousness, Mary at no
point blamed the nursing staff for her fall, but simply proffered an explanation that she just felt that
she had to go.

This Court is not implying that Mary is responsible for her own death. Accidents happen,

even in hospital settings, without any party deserving blame. However, even if it could be said that

20

Rosebud IHS was somewhat negligent for not having functioning bed alarms or checking on Mary
more frequently, the contributory negligence of Mary is greater than slight in comparison to the

claimed negligence of Rosebud IHS. Therefore, Mary, and in turn Wierzbicki, is barred by the
doctrine of contributory negligence under South Dakota law from recovery here.
III.

Conclusion

For the reasons explained above, it is hereby
ORDERED that judgment for the Defendant will enter on Plaintiffs Complaint.

Dated July j£*2014.
BY THE COURT:

*¥

ROBERTO A. LANGE

UNITED STATES DISTRICT JUDGE

21