September 12, 2019

The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) in its unpublished opinion filed on August 23, 2019, reversed summary judgment granted to the defendant nurses in a New Jersey medical malpractice case, finding that the plaintiffs established a prima facie case of professional negligence on the summary judgment motion.

The Underlying Facts

When the plaintiff was seven-years-old, his parents brought him to an urgent care center the day after he had caught his foot in a trampoline. He was diagnosed with a sprained ankle.

The child’s mother brought him to the defendant hospital the next day because his pain persisted. One of the defendant nurses at the defendant hospital failed to perform a focused assessment and did not examine his foot or test pulses or sensations in his foot or leg. A physician assistant ordered an x-ray that showed no fracture or dislocation, and the child was diagnosed with a foot sprain and discharged.

The child’s parents brought him back to the defendant hospital’s emergency department two more times. During one visit, another defendant nurse noted foot pain and swelling but failed to assess his foot and failed to take his blood pressure despite noting his heart rate of 160 beats per minute (the normal heart rate for a seven-year-old is between 80 and 120 beats per minute). Another defendant nurse also saw the child during that visit and again failed to examine his foot or ankle, check pulses or sensations in his leg or foot, or assess his skin temperature or color. The child was again evaluated by the same physician assistant, who applied a splint to his leg and provided him with crutches and discharged him with a diagnosis of foot sprain.

When the child’s father brought him back to the defendant hospital’s emergency department at 3 a.m., another defendant nurse took some of the child’s vital signs but did not examine his foot, check pulses in his foot or leg, or assess his pain level. Another defendant nurse also examined the child that morning and completed a pain assessment, recording a pain level of six on a scale of ten, but did not recall performing, and there are no notes in the medical records indicating, a skin or sensation assessment or a pulse check of the child’s lower leg.

A different physician assistant examined the child during that ED visit, performing a physical exam and noting tenderness to the left foot, mild swelling, and ecchymosis (bruising) of the lateral and medial aspects of the left foot. The physician assistant reapplied the splint and a prescription was written for Motrin for pain as needed. The child was discharged around 6 a.m. with a diagnosis of foot sprain.

Upon arrival at another hospital at 12:30 p.m. that same day, the child’s left leg was cyanotic and cold to touch, and a Doppler scan showed no pulses in his lower left extremity. An ultrasound revealed deep vein thrombosis and the child was diagnosed with severe compartment syndrome and taken into surgery for a fasciotomy. Following surgery, the child developed septic shock and went into respiratory failure, requiring ventilator support and leading to a lifesaving, below-the-knee amputation. When a free flap repair was unsuccessful, the child’s leg was amputated above his knee.

The plaintiffs’ New Jersey medical malpractice lawsuit alleged that had the defendant nurses performed proper assessments and documented the pain and swelling in the child’s leg, the physician assistants and their physician supervisors would have been alerted to undertake further inquiry to determine the cause of the child’s pain. The plaintiffs contended that the nurses’ failure to do so contributed to the amputation of the child’s leg.

The defendant nurses filed a motion for summary judgment which the trial judge granted, finding that the plaintiffs’ experts had established breaches in the standard of care but they had failed to show causation. The plaintiffs appealed.

New Jersey Appellate Court Opinion

The New Jersey Appellate Court stated, “Having reviewed the evidence on the motion, we are satisfied summary judgment should not have been granted on this record. To the extent the trial court’s opinions can be read to suggest plaintiffs needed to present a single report as to the alleged negligence of the nurses addressing both deviation and causation, we disagree … As Dr. Sixsmith’s affidavit plaintiffs submitted in opposition to summary judgment was not at odds with either her report or her deposition testimony, it was a mistaken application of discretion for the judge to refuse to consider it … As plaintiffs established a prima facie case of negligence against the nurses sufficient to defeat summary judgment based on the expert opinions of Nurse Byerly and Dr. Sixsmith, summary judgment was also improperly entered in favor of defendant Clara Maass, as the hospital is subject to liability based on a theory of respondeat superior [citation omitted]. We are also convinced that summary judgment was likewise improperly entered in favor of the hospital on plaintiffs’ theory of apparent authority.”

Source Joshua Piperato, et al. vs. Allison Lam, M.D., et al., A-3569-17T1.

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