By: Michael M. Wilson
A noteworthy recent unpublished opinion in the United States Court of Appeals for the Fourth Circuit can be found in LaClair v. Suburban Hospital, Inc. and Physical Therapy and Sports Medicine (PTSM),
Case No. 12-1195, decided April 15th, 2013.
In this case, Mr. LaClair, a vibrant former CIA officer in his mid-80s was injured during exercise therapy at Physical Therapy and Sports Medicine clinic, when his exercise therapist stepped away while he was doing an exercise and needed assistance. He suffered a cervical fracture and dislocation, and was taken by ambulance to Suburban Hospital.
At Suburban Hospital, Dr. Alexandros Powers, a neurosurgeon, stabilized Mr. LaClair’s cervical spine with screws and rods, and the surgery was successful. He should have recovered without any injury.
However, afterwards, two patient care technicians at Suburban repositioned him in bed, slammed his head against the bed, and re-fractured the cervical spine. At that point, he sustained a severe spinal cord injury, ultimately requiring a feeding tube.
Mr. and Mrs. LaClair filed two separate suits, one against Suburban Hospital for the repositioning injury, and one against PTSM for the exercise injury. The LaClairs settled with PTSM for $1 Million on March 4th, 2010. Suburban Hospital settled for $650,000, with an additional $600,000 in the event that the court found that PTSM and Suburban were not joint tortfeasors.
The trial court found that the parties were joint tortfeasors, thinking that the acts were a “continuous flow”. The LaClairs appealed.
The legal issue was whether the bed repositioning injury was a superseding intervening cause. The seminal Maryland case is Pittway Corporation v. Collins, 973 A.2d 771 (Maryland 2009). The Pittway test is whether the harm is different in kind from what was caused by the first party’s negligence, extraordinary rather than normal, is not a normal result, is due to the negligence of a third person, and the degree of culpability of that third person.
The federal court of appeals held that the bed repositioning injury was not a superseding, intervening cause. A strong argument could be made that this holding was incorrectly decided.
First, the harm was different in kind. Mr. LaClair would have recovered completely from the exercise injury. He only sustained harm by a new injury caused by the bed repositioning at Suburban Hospital. The appeals court erred when it stated that the injury was essentially the same.
Second, Mrs. LaClair presented evidence from three neurosurgeons that the bed repositioning injury had never been seen before, and therefore was unforeseen. The appeals court disregarded this testimony and decided that the repositioning injury was foreseeable.
The legal issue was framed as to whether the repositioning injury was a normal consequence or extraordinarily negligent. The appeals court considered it to be a normal consequence. It would seem that when a Suburban Hospital patient care technician slammed Mr. LaClair’s head up against a bedrail with such force as to break his neck, that that was “extraordinarily negligent.” Everyone knows that when a patient has fractured his neck and has plates and screws, then you have to be especially careful with that patient and not slam his head up against the bedrail. The appeals court found that even if the orderly was “very rough”, then that did not get to the level of “extraordinarily negligent”. Again, it seems that when you have a patient who broke his neck, had it repaired at Suburban Hospital with plates and screws, was going to recover completely, and then the orderly slams his head up against the bed rail with enough force to again break his neck, that such conduct is “extraordinarily negligent.” It would seem that most jurors, if asked to decide this issue, would decide that such conduct is “extraordinarily negligent.”
The United States Court of Appeals for the Fourth Circuit, covering Maryland and Virginia, did not publish this opinion, meaning that it is not binding precedent in the Fourth Circuit. Therefore, another panel of the Fourth Circuit may well decide this issue differently.
I respectfully submit that the LaClair decision was incorrectly decided, and that a future panel of the
United States Court of Appeals for the Fourth Circuit should rectify the error and decide this issue differently when this issue again is presented to the Court.
Dr. Michael M. Wilson is an attorney and a physician who earned his undergraduate degree from the Massachusetts Institute of Technology and his legal and medical degrees from Georgetown University. He has focused in the area of medical malpractice for more than three decades and secured more than $100 million in settlements and verdicts on behalf of clients throughout the country. He is admitted to practice in the District of Columbia and New York as well as the U.S. Court of Appeals for the District of Columbia and the U.S. Supreme Court. He is listed in America’s Top 100 High Stakes Litigators.
