PATIENT ESCORT How many staff members typically help patients into their cars at your facility?

How many nurses would you assign to transfer an elderly total knee patient from a wheelchair to a car? What if the patient is diabetic, has been given opioids twice that day, has zero degrees of extension and only 67 degrees of flexion, and says her pain is a 10?

A Kansas hospital that assigned only one nursing assistant to do the job — with disastrous results — appears fortunate that an obvious miscalculation on the part of the patient's lawyer has, at least so far, saved it from having to answer accusations of negligence. The elderly patient in question fell while trying to get into the car and sustained numerous injuries.

The patient, Jaclan Lanam, says Kelly Zoglman, a nursing assistant at Hutchinson Regional Medical Center, helped her stand up next to the car, but then began talking to other people and became distracted, court records show. According to Ms. Lanam, Ms. Zoglman eventually said, "OK," and Ms. Lanam took it as a cue to turn and try to sit in the car. Instead, court records show she tumbled to the pavement, causing Ms. Zoglman to say, "I knew I should have brought somebody else with me."

Court records further show that Ms. Zoglman says she'd explained to Ms. Lanam that she planned to help her scoot back toward the car, sit her on the car seat, swing her legs in and turn her forward. Instead, she says, Ms. Lanam suddenly lifted her left leg, thus putting all her weight on the knee that had just been replaced, and fell.

Negligence?

The case ended in a mistrial after it became unclear what exactly the patient's lawyer was alleging. Was it a case of simple negligence — letting a patient fall — or did it involve area that would require expert testimony?

At a pretrial hearing, Ms. Lanam's lawyer, Matthew Bretz, asserted that Ms. Lanam fell because Ms. Zoglman dropped her. It was simple negligence, in other words, he said, and he wasn't planning to provide an expert, because no expert was needed to explain the common knowledge that dropping an elderly woman who has just had major surgery is a bad thing. The judge said that was fine, but cautioned Mr. Bretz, in that case, not to refer to the hospital's policies and procedures as "safety rules" during the trial, because doing so would call into question areas that do require expert testimony — areas related to the appropriate standard of care for moving a patient who's diabetic, who's on pain meds, who could only walk 130 feet with a front-wheel walker and who'd just had a knee replaced. Whether her condition required 1, 2, or 3 CNAs is not a matter of common knowledge, said the judge.

But when the trial began, Mr. Bretz immediately stepped out of bounds, saying in his opening statement, "What brings us to this courtroom today ... are the safety requirements that protect patients when they go to the hospital" and that "if it's safer to have 2 people transfer a lady who has just had a knee replacement, then that's how it needs to be done."

The hospital objected, arguing that the patient's lawyer had violated the edict set out by the judge (even if he'd said "safety requirements" instead of "safety rules") and in so doing had thrust the case into an area that required expert testimony, which Mr. Bretz did not plan to provide. The judge agreed and reluctantly declared a mistrial. On appeal, the mistrial ruling was upheld.

Rachel Lomas, the hospital's lawyer, says Ms. Lanam may still petition the Kansas Supreme Court for review, but that she does not know whether she plans to do so. A call to Mr. Bretz was not returned. Nor did the hospital return a call seeking comment.

Jim Burger