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Massey v. Mercy Medical Center Redding

December 22, 2009

CARL R. MASSEY, PLAINTIFF AND APPELLANT,
v.
MERCY MEDICAL CENTER REDDING ET AL. DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Shasta County, Bradley L. Boeckman, Judge. Reversed in part and affirmed in part. (Super. Ct. No. 159473).

The opinion of the court was delivered by: Butz, J.

CERTIFIED FOR PUBLICATION

This is a negligence action against a nurse and, vicariously, the hospital that employed the nurse. Plaintiff Carl R. Massey was a postoperative patient who sustained injury after falling from a walker. The nurse had placed plaintiff on the walker and then left him unattended.

We conclude that the question of the nurse's alleged negligence for the fall poses a question of common knowledge, and therefore does not require expert opinion testimony. Consequently, we shall reverse that part of the trial court's judgment that concluded otherwise and that dismissed the negligence action after plaintiff made his opening statement. We shall affirm that part of the judgment that denied plaintiff's attempt to amend his complaint to add causes of action for battery, fraud and elder abuse.

FACTUAL AND PROCEDURAL BACKGROUND

Besides concluding that the issue of the nurse's alleged negligence regarding plaintiff's fall required expert opinion testimony, the trial court found plaintiff's expert unqualified on this issue. With plaintiff lacking the required expert, defendants Ken O'Bar, a registered nurse, and his employer, Mercy Medical Center Redding (hereafter O'Bar or Nurse O'Bar and Mercy, respectively) moved successfully for non-suit after plaintiff's opening statement, and the case was dismissed.*fn1

Plaintiff's opening statement specified the following evidence, which we must fully credit because we are reviewing a successful defense motion for non-suit that precluded plaintiff from presenting his case to the jury for decision. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838-839 (Carson).) We will cover the highlights of this evidence now, and detail it when we discuss the negligence cause of action in part I. of the Discussion below.*fn2

Plaintiff, who was then 65 years of age, underwent bifemoral bypass surgery on March 3, 2006, to improve circulation in his legs. This procedure involved making incisions in plaintiff's abdomen and groin.

After plaintiff's surgery, nurses caring for him (including defendant O'Bar) noted that he was a substantial fall risk and placed him on a fall prevention protocol that included a walker and assistance.

On the evening of March 9, 2006, plaintiff used his call light to summon a nurse to help him go to the bathroom. Nurse O'Bar arrived, set plaintiff on the walker, and then told plaintiff he (O'Bar) had to go do something and would be right back. When "right back" became 15 minutes, plaintiff lost patience and tried to move on his own with the walker. He fell and suffered a compression fracture to his back.

Based on this evidence, plaintiff sued O'Bar and O'Bar's employer, Mercy, for "ordinary" negligence. Subsequently, plaintiff moved to amend his complaint to allege "medical" negligence based on this same evidence; and to allege battery, fraud, and elder abuse based on O'Bar injecting plaintiff, about four hours after plaintiff was found to have fallen, with morphine sulfate without a valid prescription and without informed consent.

The trial court allowed the "medical" negligence cause of action to replace the action for "ordinary" negligence, but denied the addition of the battery, fraud and elder abuse counts. (See Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 995 (Flowers) [substantively, "ordinary" and "professional" negligence comprise just one form of action].) It was this "medical" negligence cause of action on which plaintiff gave his opening statement and on which the trial court granted the defense's motion for non-suit.

DISCUSSION

The issues On appeal, plaintiff raises three issues. He contends the trial court erroneously (1) required expert opinion testimony to establish negligence concerning his fall; (2) found his expert unqualified on this issue; and (3) denied his motion to amend his complaint to allege causes of action for battery, fraud, and elder abuse. We agree with plaintiff regarding his first contention, rendering his second contention moot: Expert opinion testimony is not required to establish negligence for plaintiff's fall. As for plaintiff's third contention, we conclude the trial court did not abuse its discretion.

I and II. The Issue of Expert Testimony Involving Plaintiff's Fall and the Disqualification of Plaintiff's Expert

Generally, "negligence" is the failure to exercise the care a reasonable person would exercise under the circumstances. (Delaney v. Baker (1999) 20 Cal.4th 23, 31 (Delaney).) Medical negligence is one type of negligence, to which general negligence ...


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