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The plaintiff in Thomas v. New York University et a1 targeted two surgeons in his negligence suit. During a procedure the patient fell off the operating table while under general anesthesia and sustained head and neck injuries.

Medical records indicated that while the patient was unconscious, the surgeons needed a better view of the surgical site. The table was tilted at an extreme angle, and the patient was being turned when the lower part of his body slid off the table. His head slipped out of a stabilizing device. He sustained neck trauma, head lacerations, and needed mechanical assistance to breathe for six days as a result.

His suit against the physicians alleged negligence and called for partial summary judgment. The plaintiff invoked the legal principle of res ipsa loquitur, which means the event, or negligence, speaks for itself. It is a motion that is typically used for cases of retained sponges and instruments, or drug overdoses.

The trial court denied the motion for summary judgment and the patient appealed. The New York state appeals court reversed in favor of the plaintiff, though it noted that the doctrine of res ipsa loquitur does not automatically imply negligence.

Instead, the court found a related principle in case law that calls for summary judgment when the evidence shows that "the inference of negligence is inescapable and unrebutted." The surgeons did not provide a defense rebutting the facts.

Therefore, the court concluded that, “it can hardly be debated that anesthetized patients do not fall from operating tables in the absence of negligence.” Summary judgment was granted to the plaintiff and the case was remanded for further action.

Among the dozens of slip and fall suits brought in the Harvard system over the past 10 years, most have involved minor injuries. However in at least two cases, the patient fell from exam tables, suffered subdural hematoma, and died. Settlements were as high as the $300,000 range. Slips and falls can happen throughout the hospital, though cases seem to cluster somewhat in the emergency and radiology departments.

The New York University case shows that the public and the legal system hold physicians as responsible as anyone else tor the safety of patients in a medical setting. Legal principles such as foreseeability of harm and reasonable measures to prevent it will be applied.

Hospitals typically have patient fall policies to help prevent these incidents. Such policies should work toward adequate assessment and monitoring for patients at risk. Patients who are elderly, on heavy medication, or admitted with conditions that compromise their mobility need extra attention. Adequate assistance should be sought when a compromised patient needs to be moved. In all these cases a note in the chart about these measures can help defend allegations of negligence; but more importantly, such documentation can help alert other providers about any special monitoring or precautions the patient needs to stay safe.

Slip and Falls

by Attorney Frank E. Reardon

June 2002