A couple weeks ago, I posted a review on the 10th District's determination that injuring a patient during transport to a dining facility in a nursing home was not a medical claim for the purposes of determining the statute of limitations. I advised keeping the decision on file to deal with the affidavit of merit requirement, and sure enough, in another good decision, the court expanded the decision to include situations where the nursing home is accused of injuring a patient during transport to the bathroom in dealing with the affidavit of merit requirement.
In the most recent decision, the patient was injured because the nursing facility failed to follow the patient's transport planning. He had an increased risk of falling following a surgery and the facility was supposed to have two staff members assist him. Only one staff member was present when the patient violently fell into the door jamb severely cutting his head, ultimately leading to his death. A survivorship action was filed, claiming the facility lacked adequate staffing, and the case dismissed for the lack of a affidavit of merit. The plaintiff refiled the claims and included an affidavit of merit from a nurse, but the trial court deemed the affidavit insufficient and dismissed the action.
The 10th District reversed the decision relying on the the principle that injuring a patient during transport for non-medical reasons does not constitute a medical claim, following decisions from around the state that hold ancillary acts, unnecessary to medical treatment are not medical claims. The opinion is another good case for future reference when dealing nursing homes injuring a patient during transport. Maybe an ominous sign of the impending review, the court held in the alternative that the affidavit of merit filed by the nurse was adequate for the purposes of properly pleading a cause of action even if the claim advanced was a medical claim.
It might be a bit early to predict the chances of reversal, but for now, between the two decisions, the 10th District is strongly standing behind the principle that not all causes of actions against a nursing home are medical claims solely because the injury occurred in a facility that also provides medical care. It is a fact dependent inquiry, to be handled on a case by case basis.
