Pedraza v. WYCKOFF HGTS. CTR.

RICHARD RIVERA, J. In this negligence action, plaintiff is the niece of the decedent as well as the administratrix of Ms. Garcia's estate. Plaintiff claims that while Ms. Garcia was a patient of the defendant hospital in December 1998, the hospital failed to follow its internal Fall/Injury Prevention Protocol (the protocol) which required it to keep all the bed rails on the decedent's hospital bed in the raised position at all times, and that plaintiff fell while one of the bed rails was in its lowered position. She seeks damages on behalf of the estate for the decedent's personal injuries. The trial of this action was commenced on May 22, 2002. After plaintiff rested her case, defendant moved to dismiss the action on the ground that plaintiff had failed to establish that defendant had acted negligently, and that even if, arguendo, she had established defendant's negligence, she had nevertheless failed to establish that this negligence was a proximate cause of decedent's injuries. The relevant facts are as follows.

On December 1, 1998, Ms. Garcia was taken to defendant's emergency room with respiratory problems and related complications. She was 86 years old at the time, had been suffering from Alzheimer's disease for approximately one year, and neither spoke nor understood English. Ms. Garcia lived alone in an apartment building where plaintiff also lived. Plaintiff's mother was one of Ms. Garcia's three sisters, but the other two sisters were out of touch with the decedent up to the time of her death. It appears that by December 1, 1998, plaintiff and her mother were the only family members who were in close touch with Ms. Garcia. Describing decedent's condition during the year before December 1, 1998, plaintiff testified that Ms. Garcia could not care for her own needs after she was stricken with Alzheimer's disease. Ms. Garcia could not walk, go to the bathroom, or feed herself without assistance, and she relied upon plaintiff's help as well as the assistance of an eight-hour-a-day home attendant to care for all her physical needs. Plaintiff also testified that Ms. Garcia would get lost if she left her apartment alone, but that she often insisted on going out by herself and became belligerent when plaintiff or the home attendant prevented her from leaving her apartment. Ms. Garcia once threatened plaintiff with a knife when she would not allow her to leave her apartment unescorted. On November 29, 1998, Ms. Garcia became markedly weaker with labored breathing, and her condition had deteriorated by December 1, 1998. Based on these facts, plaintiff claims that the hospital violated its own protocol for high risk patients by not keeping all the bed rails on Ms. Garcia's bed raised. She contends that this violation constitutes negligence and was a proximate cause of Ms. Garcia's fall. The hospital claims that plaintiff has failed to establish a prima facie case of negligence against it and moves to dismiss the action. It contends that the hospital followed its protocol in all respects. While the protocol required that hospital personnel check Ms. Garcia only once every two hours, its medical providers checked her on an hourly basis. And, while it acknowledges that its personnel left one of the four bed rails in the "down" position at all times, it nevertheless contends that this is required by New York State Health Regulation (10 NYCRR 405.7) which provides that hospitals may not physically restrain patients without a doctor's order. Arguing that leaving all the rails in the raised position would constitute a restraint, the absence of a doctor's order in this regard required that the hospital leave one rail down even if this did not strictly comply with the hospital's protocol. In any event, the hospital argues that there is no version of the credible evidence upon which a jury could conclude that the proximate cause of Ms. Garcia's fall was the one lowered bed rail. Accordingly, it urges that since plaintiff can neither establish that the hospital violated its own protocol nor that such violation, even if established, was the proximate cause of Ms. Garcia's fall, she cannot establish negligence against the hospital as a matter of law.

Preliminarily, on a motion to dismiss a plaintiff's negligence action at the close of the plaintiff's case, courts must view the evidence in the light most favorable to the plaintiff. (Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743, 745; Secof v Greens Condominium, 158 AD2d 591, 593 [2d Dept 1990].) The motion "should only be granted if there is no rational process by which a jury could find for the plaintiff as against the moving defendant." (Secof v Greens Condominium, id. at 593.) To establish a prima facie case of negligence based on circumstantial evidence, "[i]t is enough that [plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred." (Schneider v Kings Highway Hosp. Ctr., id. at 744.) The law does not require that plaintiff's proof of the witnesses. This is especially true since the nurse's aide who initialed the Assessment/Re-Assessment Record did not testify. Furthermore, the nurse's progress notes for December 2, 1998 indicating that all rails were up and locked contradict Nurse Sewell's testimony that one rail always had to be kept lowered because of 10 NYCRR 405.7 (b) (5). In this connection, Nurse Sewell testified that all the rails could be kept upright only with a doctor's order. It is conceded that no such order existed. Moreover, in this regard, the jury could conclude that it was possible that the safety alert sign was not placed above Ms. Garcia's bed and this could support a jury's conclusion that the hospital was lax in implementing its safety protocol.

For the foregoing reasons, defendant's motion to dismiss this action on the ground that plaintiff has failed to set forth a prima facie case is denied.