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Civil Procedure Rules Play a Big Role in Professional Negligence Cases

Simply put, civil procedure consists of the methods, procedures, and practices used in civil cases.

Civil cases involve disputes between individuals or institutions in which the plaintiff alleges the defendant caused the plaintiff harm. Professional negligence lawsuits are one type of civil case called a “tort.”

Everyone involved in a civil case, including the plaintiff, defendant, lawyers, and judge, must adhere to civil procedure rules.

The following case (Lauer v. Golden Living Center-Harrington,28 Neb. App. 729 (2020), explains the way in which several of the rules are utilized to determine the trial court’s ruling.

Particulars of the Case

In the case, the female patient had knee replacement surgery and was transferred four days later to a skilled nursing facility. She stayed there for four days.

On the second day of her stay, the nursing staff noticed the patient was “not her normal self” and was becoming increasingly confused. The patient’s physician was notified by fax of her condition. The next day, the nursing staff contacted the physician again, this time concerning the patient’s lack of a bowel movement. The physician ordered medications for this condition.

The patient’s confusion continued, and the physician was notified again. He ordered the patient transferred to a nearby hospital. The patient was admitted to the ICU unit with the following conditions: hyperatremia, hypokalemia, hypochoremia, metabolic and respiratory alkalosis, anemia, and metabolic encephalopathy. She remained in the hospital for two weeks.

The patient filed a professional negligence suit against the nursing home, alleging that it was “negligent in her care and treatment,” and that it did not use “ordinary care” under her circumstances. The patient also alleged that as a direct and proximate result of its negligence, she was “seriously and permanently injured.”

The nursing home filed its answer to the patient’s complaint and then, without any discovery being done, filed a motion for summary judgment.

The motion was argued before the trial court with the nursing home submitting an affidavit from its director of nursing, the patient’s medical records, and several other documents.

The patient provided the court with an affidavit from a nurse expert that detailed the specific instances of the nursing home’s negligent care. Almost a year later, the court granted the nursing home’s motion for summary judgment. The patient appealed that decision.

The basis of her appeal rested on three points:

  1. The court erred in holding that the patient’s nurse expert did not state the applicable standard of care.
  2. The court did not make its decision on any issue(s) of material fact, which is required with a motion for summary judgement. A material issue of fact is one that a reasonable person would recognize as essential to support the legal allegations by the patient.
  3. The court improperly placed the burden of proof on her that there was a material issue of fact contrary to the rules governing summary judgment motions, which requires the nursing home to meet this burden.

The Appellate Court Ruling

In ruling on the first basis of the patient’s appeal, the appellate court held that questions remained unanswered regarding if a genuine issue of material fact existed as to whether the nursing home breached its standard of care.

The patient’s expert witness raised specific examples, in her opinion, of how the nurses breached the standard of care: No documentation of the patient’s mental status was made for a period of 24 hours and there was a failure to accurately document the patient’s intake and output.

Additionally, since the nursing home’s expert simply stating that the home did not breach its standard of care is not sufficient, a summary judgment was not correct.

Addressing the second basis of her appeal, the appellate court held that the district court erred. It stated that when a motion for summary judgment is before the court, it should not resolve a factual issue but rather determine if a material issue of fact exists. If one exists, granting a summary judgment motion is not possible.

The burden of proof in a summary judgment motion rests with the party filing it — which, in this case, is the nursing home. The nursing home was required to produce evidence and demonstrate that there were no genuine issues of material fact. Because the issue of causation (Was the breach of the standard of care the cause of the patient’s injuries?) was not specifically raised by the nursing home, the cause of the patient’s injuries was another unresolved material issue of fact.

The appellate court reversed the order granting the summary judgment motion and remanded the case back to the district court for further proceedings.

What This Case Means for You

An important principle demonstrated in this case is that established civil procedure requires that a decision by a court is based on methods, procedures, and practices that all participants must abide by. Although winning a case is desired by both sides, it must be won in a fair and just manner.

This case also underscores the importance of the role of the nurse expert. Here, experts’ testimony on both sides was contradictory. The nursing home’s expert asserted the standard of care was met while the patient’s expert detailed where it was not. Because of the specificity of the patient’s expert, fact issues were present that required a determination of those issues rather than simply granting a judgment for the nursing home.

Retaining an attorney who is experienced in trying professional negligence cases is critical. The patient’s attorney was well-versed in both civil procedure and in professional negligence cases, and this was a deciding factor in overturning the trial court’s grant of the summary judgment motion.

For those of you who have personally purchased a professional liability policy, you have as a benefit an attorney who will represent you should you be involved in a professional negligence suit. These attorneys are well-versed in such suits.

In addition, the representation is at no cost to you other than the amount you paid for your professional liability insurance.

Finally, the importance of documentation in a patient’s record is again highlighted. The lack of nursing documentation regarding the patient’s mental status and intake and output were just two examples that raised the question as to whether or not the nursing staff met its standard of care and standards of practice.


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By | 2021-01-06T17:06:20-05:00 January 6th, 2021|Categories: Nursing Careers and Jobs, Nursing News|1 Comment

About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

One Comment

  1. Avatar
    Leo May 19, 2021 at 2:22 pm - Reply

    This is not entirely accurate / up to date. The Florida Supreme Court has amended it’s Rule of Civil Procedure 1.510 effective May 1, 2021 to adopt the federal standard for summary judgement. Now, movants without a burden of persuasion at trial are no longer required to disprove a non-movant’s theory of the case. “[I]f the nonmoving party must prove X to prevail [at trial], the moving party at summary judgment can either produce evidence that X is not so or point out that the nonmoving party lacks the evidence to prove X”.

    The court said, “in Florida it will no longer be plausible to maintain that ‘the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment, so long as the “slightest doubt” is raised,’”

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