Avoiding Liability Bulletin – April 15, 2018

You may recall from previous Bulletins that there are four essential elements of professional negligence that must be proven by the injured patient (plaintiff) in order to obtain a judgment against the person causing the injury (e.g., nurse).  The elements are:

  1. A duty exists between the patient and the nurse;
  2. The duty is breached (not met);
  3. The breach of duty is the proximate cause of injury to the patient; and
  4. The patient suffers injury or other damages.

In the following case, the United States District Court for the Western District of Kentucky illustrates how these elements are applied to the specific facts of this case.1

Ms. Haugabook was admitted to a nursing home with several medical problems, including acute respiratory failure, diabetes mellitus, and breast cancer.  Ms. Haugabook needed total assistance from the nurses at the facility due to being bed-ridden and unable to talk due to a tracheal tube.

The patient’s daughter visited her mother regularly at the nursing home.  She clearly believed that her mother was receiving “substandard care”.  Specifically, the tracheal tube was often dirty and clogged (causing it to overflow onto Ms. Haugabook’s chest) and the odor of urine and feces was constantly present due to the nurses not changing her mother’s diaper.1

The daughter notified the nurses each and every time she discovered the above situations.  The nurses repeatedly responded that they were “short staffed” and would “get to it when [they] could.”

After numerous months at the nursing home, Mrs. Haugabook died.  Her death certificate listed metastatic breast cancer and chronic respiratory failure as the causes of death.

The daughter, as the Executrix of her mother’s estate, filed a law suit against the nursing home.  All of the allegations involved the nurses’ care of her mother.  Specifically, the daughter alleged the nurses:

  1. Failed to perform specific care tasks, including adequate skin and “incontinent care”;
  2. Violated Kentucky law that protects elderly and incompetent people from abuse, resulting in de-hydration, skin breakdown, and infections;
  3. Were “mentally and physically” abusive to her mother; and,
  4. Conduct was “Grossly negligent” which caused her mother’s death.1

Because the nurses were employees of the nursing home, the daughter alleged that the home was liable under the respondeat theory of liability.  In addition, the daughter alleged that because the nurses’ conduct was committed with “oppression, fraud, [or] malice”, the estate was entitled to punitive damages.

The nursing home filed five motions, but the Court ruled only one of the five was dispositive of the daughter’s case, its Motion for Summary Judgment.

The daughter responded to all five motions, including the Motion for Summary Judgment, but did not attach or cite evidence in any of the responses supporting her allegation that her mother’s death was caused by the alleged misconduct of the nurses.

The Court reviewed the expert witness’ testimony of both the plaintiff and the defendant, applicable Kentucky laws, and other applicable evidence.  It opined that when an alleged breach of a duty is raised, causation is a necessary element of proof when a supposed breach of a duty occurs.

Although the daughter declared in her case that her mother’s injuries were the result of the nurses’ misconduct, she did not present any evidence to support a finding that these injuries were caused by the nurses’ substandard care.  “Absent such proof, the plaintiff’s [daughter’s] case fails as a matter of law”.

The Court also pointed out that the daughter’s expert witness, who was a nurse, testified that she was not qualified to provide an opinion regarding causation.  In contrast, the nursing home’s expert testimony was that the nurses’ conduct did not cause the mother’s death.

The Court granted the nursing home’s Motion for Summary Judgment and denied the remaining motions as moot.

This case illustrates many points.  First, the nurses’ care, as described in the opinion, was inferior.   Moreover, the excuse given for not providing care—being short staffed—apparently was never raised to their nursing or administrative superiors.  And, the response that they would get to the care of Ms. Haugabook “when they could” creates genuine legal and ethical concerns.

Whether these factors caused the patient’s death remains unanswered.  Had the daughter been able to utilize a nurse expert that was qualified to truthfully testify that the inferior care, and no care in many instances, caused the patient’s death, the case might have had a different verdict.

Second, this decision underscores the importance of meeting all of the essential elements of a cause of action alleging professional negligence.  In my opinion, three of the elements of the cause of action were met.

A duty existed between the nurses and Ms. Haugabook.  The nurses were obligated to provide nursing care consistent with standards of practice.  Reviewing the description of the care and non-care included in the opinion, the nurses breached their obligations.  Last, the patient suffered injuries, including death.  Even so, without proof of causation, the case could not be won.

A third legal issue that is highlighted by this case is the critical importance of nurse expert witness testimony.  Not only must an expert witness be qualified to testify concerning nursing care provided or not provided, he or she must also be able to testify to the factual matters that are essential to the allegations of the case.

Fourth, this decision underlines the reality of the law.  Despite the poor care Ms. Haugabook received and the emotional difficulties the daughter experienced due to her mother’s care and death, the justice she sought was not obtained. The “formula” required for a professional negligence case simply was not met.

Despite this verdict, it is necessary that the law be applied correctly and consistently so that all who seek its protections are treated equally.  It would not be the right approach to advocate for a judgment that is not supported by evidence and that makes exceptions in any case on an ad hoc basis.

In short, the integrity of the judicial system is essential and must be preserved.


  1. Colston v. Regency Nursing, LLC, Civil Action No. 3:16-CV-0050-GNS, United States District Court, Western District of Kentucky, Louisville Division, February 6, 2018.


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Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

Avoiding Liability Bulletin – April 1, 2018

Patient safety is a never-ending legal obligation for you, regardless of your role in the delivery of patient care.  One aspect of patient safety is to ensure, insofar as possible, protecting a patient from falling.  In the following case1, a very obvious protection from a fall was somehow disregarded.

Mrs. Petralia was 88 years old and was diagnosed with dementia.  She was admitted to a nursing home in 2008.  Approximately eight months later, she fell out of her bed at the nursing home, sustained an acute right distal fracture, and required an open reduction internal fixation surgery1.  This latest fall from her bed was her 8th since she had been admitted as a resident at the home.

Mrs. Petralia sued the facility to recover damages from her personal injuries.  She alleged her injuries were due to the facility’s negligence and professional malpractice.

Unfortunately, Mrs. Petralia died after she filed her case.  Her son, who was the administrator of her estate, was substituted as the plaintiff in the suit filed by his late mother.

Her son’s accusations against the facility were that the facility was negligent and “departed from accepted nursing home practices by failing to order and enforce proper fall precautions, to have bed rails up at the time of her latest fall, [failing] to restrain her, and [failing] to timely and properly respond to a bed alarm”.

After the completion of discovery in the case, the nursing home filed a Motion for Summary Judgment based on its expert’s opinion that the home did not breach its standard of care.  The expert based his opinion on the fact that Mrs. Petralia’s plan of care included fall prevention interventions, that restraint of the resident was “unwarranted”, and the nursing staff responded to the resident’s bed alarm in a timely manner.

However, the son’s expert opined that the nursing home did not meet its standard of care because, at the time of her fall, the bed rails were down, not up.  Additionally, he testified that the home had failed to order alternative fall prevention measures.  And, he added that the nursing staff had not adequately responded to the bed alarm.1

The lower court granted the home’s Motion for Summary Judgment and the son appealed that decision.

The appellate court reversed the decision of the trial court, holding that the son had raised a triable issue of fact through his expert’s opinion and the case should go to trial.  Evidence was produced during the discovery phase that the care plan for Mrs. Petralia required that the bed rails were to be raised “at all times” when she was in bed.

Evidence was also produced by the expert that the bed rails were down when the fall occurred.  The failure to raise the bed rails was the proximate cause of the fall, he stated.  He also testified that bed rails serve many purposes other than just to prevent falls.  Raised bed rails also remind the resident not to get out of bed by himself or herself, are a source of emotional comfort, and provide feelings of security for the patient.

The court also held that when a nursing home does not raise bed rails as ordered and/or fails to follow their own policies governing raised bed rails, the home can be held liable.

The failure of the home and the nursing staff to adhere to a fundamental, basic safety measure to prevent a resident from falling out of bed is astounding.  The utilization of bed rails should be an automatic aspect of a resident’s care, especially for a patient with compromised mental capacity.

Furthermore, Mrs. Petralia had fallen out of bed 7 times before her most recent fall.  The nursing staff knew of her risk of falling out of bed.  Yet, for whatever reason, this knowledge did not move them to protect her from this known risk of harm.

Whether you practice in a nursing home or in another health care setting, this case has implications for you.  They include:

  • Patient safety is an ever-present legal obligation;
  • Always assess, on an on-going basis, a patient’s safety risks and make those risks known to nursing staff, the patient’s physician or advanced practice registered nurse, and incorporate preventions in the patient’s written plan of care;
  • If nursing staff or other health team members are not adhering to the plan of care, notify your nurse manager;
  • Do not ignore patient call bells; respond to them as quickly as possible;
  • Bed rails are for a patient’s protection and should be used as the patient’s situation warrants;
  • Although an order may not be written for the use of bed rails, you can initiate using them based on your nursing judgment and convey your judgment to your colleagues and to those who can implement an order, if needed;
  • Know your facility’s policies on the use of bed rails and follow them without fail; and
  • As this case points out, if ignored, basic, fundamental aspects of nursing care can result in liability.


  1. Petralia v. Glenhaven Health Care Organization, d/b/a Glengariff Health Care Center, 39 N.Y.S. 3d 515 (N.Y. App. Div., 2016).


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Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

Avoiding Liability Bulletin – April 2018

It seems that every time there is a mass shooting event, followed by an outcry for gun control legislation (and school safety), there is also a discussion about the “mentally ill” and whether limitations should be placed upon their ability to legally own or possess guns. Media discussions are filled with references to the “mentally ill” without clearly defining what is meant by the term “mentally ill.” With respect to reports to the FBI’s National Instant Criminal Background Check System (NICS), those who have been adjudicated a danger to self or others in an involuntary commitment proceeding must be reported by certain entities or persons. Those “mentally ill” persons are therefore not entitled to buy or possess guns. But after all of the media discussion following the recent Florida school shooting, what would be the result of a poll question that asked the public “should a mentally disordered patient be allowed to possess a gun?”

Mental health practitioners understand that people who are being treated for mental and emotional problems span a wide spectrum – the overwhelming majority posing no threat or likelihood of committing acts of violence toward self or others.  For the many practitioners who deal with patients who seek reimbursement from insurance companies and managed care plans of various types, the diagnosis and treatment of a mental disorder is required in order to be entitled to reimbursement by the insurer or other payer – whether private or governmental. Many practitioners of various licensures believe that the pressure to specify diagnoses for patients early in the therapeutic process has transformed their practices (and professions) unnecessarily toward the sickness, illness, or medical model. Prior to the reality of widespread reimbursement for psychotherapists, there was no need to quickly identify and specify a DSM diagnosis, if at all – depending upon the treatment philosophy (e.g., family systems therapy, narrative therapy, etc.) of the particular practitioner.

This reality sometimes raises the question of whether practitioners in private practice should explore with patients the pros and cons of the patient paying “out of pocket” rather than relying on the health insurance company’s reimbursement. Such a discussion would necessarily include the topics of privacy, confidentiality, the amount of coverage, and the nuanced explanation that in order for reimbursement to occur, it will be necessary to designate a particular mental disorder that is being treated. Such a discussion must be done with care, since a careless job might lead a patient to later allege, among other things, that the practitioner talked the patient out of utilizing his/her coverage for the practitioner’s convenience – to the economic detriment of the patient. Some practitioners have shaped their practices to avoid patients who depend upon insurance reimbursement or other payers, thus eliminating oversight and review and the need to quickly assign a mental disorder to the patient. Such selectivity of clientele is not always possible or desired.

The often thorny issue for psychotherapists of all licensures is how to deal with dangerous patient situations once the practitioner has determined that a patient poses a serious danger of violence against a readily identifiable other (or a determination of dangerousness based upon a similar standard). Once that determination is made, the practitioner must act in a manner that is consistent with state law (statutory and case law). I have previously written about the dangerous patient issue and the so-called “duty to warn” in California, first established by the “Tarasoff decision” by the California Supreme Court. The actual duty enunciated in the landmark 1976 decision was that the therapist must use reasonable care to protect the intended victim against the serious danger of violence – it did not create an actual “duty to warn.” As the Court states, the discharge of the duty may call for the therapist to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.

The content of a warning made by a mental health practitioner to an intended victim can become an issue. Generally, I have advised that the warning be clear and concise – and that the practitioner reveal only that amount of information necessary to accomplish the purpose. My concern was to protect confidentiality in accordance with the sentiments expressed by the Court in the Tarasoff decision. In a 1991 California appellate court decision involving the Menendez brothers, accused of killing their parents, that court ruled that the content of a “Tarasoff warning” may include any of the patient’s statements to the therapist that the therapist reasonably believes are necessary to disclose to the victim in order to convince the victim of the extent and seriousness of the danger. In that case, one of the brothers admitted to the murder during a therapy session, and that information was later disclosed by the therapist when making the warning.

In some cases, the patient may inform the therapist that a particular person is threatening violence against the patient or a third party. Therapists sometimes think that the usual duty or right to take certain actions applies to such situations. Since the patient is not threatening harm to others, it is the patient who must decide on the appropriate course of action for the patient to take. The therapist may discuss various options that the patient could pursue, but the dangerous patient exception to confidentiality relates to situations where the patient is the one who presents the danger to others (or self).

What if a practitioner asks whether he/she should return a gun that the practitioner had taken from the patient at the patient’s request? Whether the practitioner should take the weapon in the first place is a question that can be debated, although in most circumstances, such action is either unnecessary or unwise. I think of the scenario, however, where the failure to take and temporarily hold a gun that was surrendered by the dangerous patient could result in liability exposure if the patient leaves and shortly thereafter commits an act of violence with the gun. Should the facts ultimately emerge as to the refusal of the therapist or counselor to accept and hold/store the gun, the practitioner could be vulnerable – especially if judged after the fact of a mass shooting and in the midst of intense publicity and scrutiny.

If the therapist decides to return the gun when the patient makes such a request, it can be inferred that the therapist has made the determination that the patient is no longer a serious danger of violence. The risks involved with such a determination should be apparent. I would advise a therapist in such a situation (hopefully rare) to not act rashly and to refer the patient to another practitioner (preferably a psychiatrist) for an evaluation of mental status and dangerousness. Finding a practitioner willing to make such a determination, in light of recent events, might be difficult. While the gun cannot be held by the therapist indefinitely, perhaps it can be kept by the therapist until a corroborating professional opinion is obtained and treatment is terminated. It can be argued (in appropriate cases) that since the patient voluntarily sought therapy, readily communicated the threatened behavior to the therapist, voluntarily surrendered the gun, and was thereafter in an improved mental state (no longer a danger), return of the gun was both reasonable and warranted.

On a lighter note, I have previously written about the call I once received from a therapist who told me that the patient who was scheduled for a session later that week had just called and told the therapist that when he comes to treatment in a few days he is going to kill (shoot) the therapist. The therapist asked, “What is my duty?” My response was “cancel your appointment.” Further discussion revolved around whether the therapist should notify the police of the threat and the identity and whereabouts of the patient. Of course, termination of treatment, and the manner in which the termination could be implemented, was also a topic for discussion.

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Richard Leslie

Richard S. Leslie is an attorney and acknowledged expert on the interrelationship between law and the practice of marriage and family therapy and psychotherapy. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT) and has written articles regarding legal and ethical issues for their Family Therapy Magazine. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. While there, he also served as their director of Government Relations and tirelessly advocated for due process and fairness for licensees and applicants.

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Avoiding Liability Bulletin – April 2018

In late 2015, we reminded personal trainers and other fitness professionals of their obligation to screen clients for activity prior to recommending participation in exercise programs.  At that time, we stated:

While no clear legal precedent has yet been judicially imposed upon fitness professionals to mandate screening for their clients prior to the commencement of activity programs, the industry seems to have overwhelming adopted some form of pre-activity screening as part of the standard of care owed by fitness professionals to clients.

This industry view on client screening is still in place but it has now been reformulated to an extent to make it a simpler and more streamlined process.  Some clients must still be screened before recommending an exercise program but fitness professionals should understand the process.

Recently, the American College of Sports Medicine restated its ACSM’s Guidelines for Exercise Testing and Prescription[1] which in essence revamps the screening process for clients intent on becoming more physically active.  The new screening recommendations provide that as to those individuals without known cardiovascular, metabolic or renal disease and with no signs, symptoms or indications of such conditions that prior medical evaluation and clearance is not a necessary prerequisite to the commencement of light to moderate intensity exercise activity even if they have not previously participated in a regular program of exercise.[2]  As to individuals with known cardiovascular, metabolic or renal disease but who are asymptomatic, the new ACSM Guidelines also provide that medical clearance for participation in moderate intensity exercise programs is also not necessary provided they have previously engaged in regular exercise activity as defined by ACSM.[3]  As to individuals who have signs or symptoms suggestive of cardiovascular, metabolic or renal disease, ACSM’s recommendation is that they secure medical clearance prior to participation in exercise programs even if they have participated in regular exercise programs before and that they stop exercise until they have secured medical clearance.  Lastly, as to individuals who have not participated in a regular exercise program, the ACSM recommendation is for medical clearance first if they have such known specific diseases or signs or symptoms suggestive of such diseases.

The new ACSM statement is designed to remove some of the barriers to exercise by some participants that previously should have secured medical clearance prior to participation in exercise programs.  This new standards statement may also make it less burdensome for personal trainers and other fitness professionals in their efforts to secure medical clearance for clients prior to their participation in exercise activity programs.  In fact, the subset of clients who can engage in light to moderate exercise activity under ACSM’s statement without medical clearance should be expanded as a result of the statement.

As some commentators have indicated, “exercise preparticipation health screening recommendations should not present unnecessary obstacles that deter people from adopting and maintaining a regular exercise program.”[4] The new ACSM standard is designed to remove some such unnecessary obstacles.

Fitness professionals, particularly personal trainers working with new clients, should determine in the screening process if clients do or do not have the specified diseases or specific or observed symptoms or signs suggestive of such diseases and if clients do or do not engage in regular exercise activity prior to participation in a fitness professional recommended activity.  For those clients who are covered by the new ACSM recommendations, prior medical clearance may not be required but for those with specific diseases identified in the ACSM Guidelines or with signs or symptoms of such diseases and no history of regular previous exercise activity, prior medical clearance seems to be required under the new standards statement.

As we pointed out two years ago in this column, screening is a duty established by the industry to which professionals can be held accountable.  New developments in standards statements issued by prominent exercise groups like the ACSM need to be reviewed, considered and utilized in the screening process so that professionals may comply with what will surely become part of their legal standard of care in the event of client injury and claim/suit.  All fitness professionals should become familiar with ACSM’s new recommendations and adopt them as they see fit to their client practices.  While ACSM’s new standard is not the law per se, such a statement will probably be used by experts in evaluating client care provided by fitness professionals.  However, when fitness professionals are in doubt or when they wish to utilized a more conservative approach, prior medical clearance will always be a safer risk management technique to help the fitness professional and the client alike in avoiding any untoward event and any subsequent claim and/or suit.

This publication is written and published to provide accurate and authoritative information relevant to the subject matter presented.  It is published with the understanding that the author and publisher are not engaged in rendering legal, medical or other professional services by reason of the authorship or publication of this work.  If legal, medical or other expert assistance is required, the services of such competent professional persons should be sought.  Moreover, in the field of personal fitness training, the services of such competent professionals must be obtained.

Adapted from a Declaration of Principles of the American Bar Association and Committee of Publishers and Associations

[1] 10th Edition (2018).

[2] 30 minutes at moderate intensity, 3 days a week for the past 90 days.

[3] Id.

[4] Riebe, et al, “Updating ACSM’s Recommendations for Exercise Preparticipation Health Screening”, Medicine and Screening in Sports & Exercise; November 2015, Volume 47, Issue 11, pages 247-249.

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David Herbert