concluding that allegation that fall from bed causing injury was due to hospital's negligent failure to raise a bed rail was not "part and parcel of diagnosis and treatment which would subject [Harts's] claim to coverage under the [MMA]"
How later courts described this case
- concluding that allegation that fall from bed causing injury was due to hospital's negligent failure to raise a bed rail was not "part and parcel of diagnosis and treatment which would subject [Harts's] claim to coverage under the [MMA]"
- concluding that injury incurred when bed rail collapsed, causing patient to fall, were premises liability claims not covered by Medical Malpractice Act
- allegation that a bed rail properly raised by health care provider, but which gave way under plaintiff's weight after turning himself in bed was outside the MMA
- same for claim based on fall from hospital bed after bedrail collapsed
Written by the judges who cited it.
The opinion
SULLIVAN, Judge,
dissenting.
In Methodist Hospital of Indiana, Inc. v. Ray (1990), 2d Dist. Ind.App., 551 N.E.2d 463 , we recently held that a complaint alleging that the defendant hospital “negligently and carelessly caused and permitted its premises to become infested and infected with the deadly ... Legionnaire’s Pneumonia Virus” did not fall within the Medical Malpractice Act. We noted that the complaint did not allege “failure of appropriate care” and that the allegations did not relate to any scheme of health care. Accordingly, we affirmed the trial court’s denial of defendant’s 12(b)(1) Motion to Dismiss.
In doing so, we stated somewhat broadly that the manner in which the issue is framed is crucial and that if the complaint sounds in ordinary negligence for premises liability rather than for failure to provide health care, it is outside the scope of the Act.
In the case before us, the majority focuses upon the aspect of “ordinary negligence” involved with the hospital personnel’s failure to properly secure the bedrail. 1 It would seem to hold that a claim does not fall within the coverage of the Act unless the breach of duty is “directly associated with ... medical negligence.” Slip Opinion at 8. I do not believe that the term “health care” is to be so narrowly construed.
In Ogle v. St. John’s Hickey Memorial Hospital (1985) 2d Dist.Ind.App., 473 N.E.2d 1055 , trans. denied, a patient in the psychiatric unit of defendant hospital was raped by another patient. Ogle’s complaint alleged negligent failure to provide security and protection. We held that the complaint alleged a failure to provide health care because Ogle’s proper confinement was “part and parcel of the diagnosis and treatment of her condition.” Id. at 1059 . Although the facts in Ogle may fall at the very margin of what constitutes health care, it indicates that we have previously included conduct which is not clearly “medical negligence.”
Be that as it may, Harts himself states that in his “care and treatment, the decision was made that side rails should be placed in the ‘up’ position”. Appellant’s brief at 23 (Emphasis supplied). In this regard, as well as in consideration of the differing facts, our decision in the Ray case, supra, must be distinguished.
Furthermore, authority from two other jurisdiction lends support to my conclusion that the claim here is within the coverage of the Act.
Zobac v. Southeastern Hospital District of Palm Beach County (1980) Fla.App., 382 So.2d 829 , distinguished an earlier case, Mount Sinai Hospital of Greater Miami, Inc. v. Wolfson (1976) Fla.App., 327 So.2d 883, 884 , in which the plaintiff had alleged, inter alia, that a hospital had failed to provide proper and adequate bed rails to insure the protection of its patients. The Zobac decision observed that the allegation in the Wolfson case created an issue of malpractice as opposed to the issue in Zobac which was ordinary non-medical negligence. 2 In Pitre v. Hospital Services District No. 1 (1988) La.App., 532 So.2d 501 , plaintiff brought suit for injuries sustained when the footrest of an x-ray table became detached causing her to fall. The court held the complaint to be within the coverage of the Medical Malpractice Act reasoning that the injuries “were incurred when a machine which was integral to the rendering of treatment did not function properly.” 532 So.2d at 502 .
Beds in which hospital patients are placed during the course of their care and treatment routinely and necessarily have attributes and features not found on ordinary beds in private homes, hotels and the *881 like. Such features exist for the facilitation of care and treatment and for protection of the patient. They are an integral part of the medical care. For this reason, I would hold that the allegations concerning negligence with regard to the positioning of the bed rails place this lawsuit within the purview of our Medical Malpractice Act.
I would affirm the judgment. 3
. It should be noted that the particular Florida legislation involved in the Wolfson case was subsequently declared unconstitutional upon grounds that the narrow and rigid statute of limitations violated due process. Aldana v. Holub (1980) Fla., 381 So.2d 231 .
. It may be noted that the trial court arguably had available an alternative to vacating the jury verdict. The court might have observed that I.C. 16-9.5-9-2.1 (Burns Code Ed.Supp.1989) permits avoidance of the Act if the plaintiff restricts his claim to $15,000 or less. Although framing of a claim precludes a recitation of the amount of damages requested (T.R. 8(A)(2)) and differs, in any event, from an actual damage award, it may have been permissible for the court to give plaintiff an opportunity for remit-titur so as to reduce his recovery to $15,000. See Weenig v. Wood (1976) 2d Dist., 169 Ind.App. 413 , 349 N.E.2d 235 .