October 30, 2001 - Hospital May Ignore Fainting Visitor, Connecticut Judge Rules
In July 1999, Anne Marie Murillo was with her sister in the Griffin Hospital prep room in Derby, Conn., as a nurse tried repeatedly to insert an intravenous line into her sister's arm.
According to her complaint, Murillo informed the hospital employees present that she herself was about to pass out. Then she did, breaking her jaw.
In a case of first impression, drawing from case law in Illinois, Kansas and Pennsylvania, Milford Superior Court Judge Thomas Nadeau decided that on public policy grounds, the hospital's duty to its patients is so important it should have no duty of care to watch out for an attending visitor.
"A hospital ought not have to suffer potential liability to the visitor whose sudden surprise distress would compete for attention with the staffers' clearer duties to the patient," wrote Nadeau, granting summary judgment to Griffin Hospital, throwing out negligence and loss of consortium counts from Murillo and her husband.
Plaintiff's lawyer Ian Cole, of Derby's Cohen & Thomas, said, "I think the judge's opinion was wrong." His client is considering appealing the Oct. 10 decision. "It's a case of first impression," said Cole, acknowledging the case is rife with competing policy issues.
Defense lawyer Marian Courtney, of Stamford, Conn.'s Heidell Pittoni, said in an interview that no discovery had taken place, but that as a policy matter, the hospital should only have to concern itself with patients, and should not have to worry about nonpatient visitors. Courtney said the lack of Connecticut precedent made the case particularly challenging.
Cole's brief referred to Sec. 321 of the Restatement of Torts, 2d: "Duty to Act When Prior Conduct is Found to be Dangerous," and argued that because both Murillo and her sister informed hospital personnel she was feeling faint, they had a duty to prevent her from fainting, or at least from falling.
"This argument," the judge wrote, "thus essentially claims that the defendant should have immediately deemed plaintiff to be a patient and attended to her immediately."
Nadeau looked for two elements -- whether the injury was foreseeable, and whether finding a duty on the part of the hospital would be good public policy. Forseeability alone is not enough, in the absence of a duty to prevent the injury, he wrote, quoting the 1988 3rd Circuit case of Sacks v. Jefferson Hospital .
In that case, a mother was holding her daughter's head while it was being sutured, told hospital staff she was feeling faint, and fainted as she was leaving the room. The federal court in Philadelphia found for the hospital, stating that "Mrs. Sacks voluntarily entered the treatment room [and] accepted the risk that she would witness events or conditions inherent in the medical treatment which could upset her. She was not required to be present nor was she required to hold her daughter's head."
Nadeau didn't elaborate further on the issue of assumption of risk, which has been eliminated as a negligence defense in Connecticut.
The judge turned to case law in Illinois and Kansas for guidance whether fainting while watching a medical procedure should be considered foreseeable. The 1990 Illinois Supreme Court case of O'Hara v. Holy Cross concluded that a mother fainting during an emergency room surgery on her son was not foreseeable. Furthermore, "[n]ot all people are susceptible to fainting and common sense suggests that those who are would avoid emergency room situations."
Due to the "enormous" burden that would arise from recognizing some duty on the part of the hospital, the Illinois court found none, on policy grounds.
Nadeau regarded the matter as either giving Murillo the level of care due a patient, or having no duty whatsoever, and on policy grounds chose the latter.
He rejected her argument from the Restatement of Torts, Sec. 321. One of its illustrations is the case of a truck driver whose vehicle gets stuck sideways on an icy road. If he doesn't warn approaching motorists of this new danger, he's liable to motorists who skid into his truck.
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