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Ordinary Negligence or Medical Malpractice?

Catherine Hemming

was a resident at Oak Woods Nursing Center.

She suffered from dementia and diabetes, had suffered several

strokes, and required 24-hour care that included assistance with

grooming, eating, toileting, and bathing. The patient's condition

impaired her judgment and reasoning ability and, in turn, caused

cerebral atrophy (loss of brain cells). Ms. Hemming had no control

over her movements in bed, and hence, was prone to sliding about

without sensing her position in bed. This lack of control was

addressed in the patient's plan of care in which the facility's medical

director authorized the use of various physical restraints. These

included bed rails to keep the patient from sliding out of the bed, and

a restraining vest that would keep her from moving her arms, thereby

impeding her ability to slide. The physician's orders also included

wedges or bumper pads that were placed on the outer edge of the

mattress to keep the patient from hurting herself by striking, or by

entangling herself in the rails. According to nursing home

regulations, the use of restraints of this sort must be authorized by a

physician to prevent overuse and excessive patient confinement.

Ms. Hemming died of asphyxiation after her neck got caught

between the raised bed rails and the mattress. The day before her

death, two nursing assistants had found the patient tangled in her

restraining vest, gown, and bed sheets. The employees untangled her,

repositioned her, and used wedges and pads so that she would not

slide into the gap between the mattress and the bed rail. Whether the

aides informed their supervisor about the risk remained unclear.

Denise Benton, as personal representative of Hemming's estate, sued

Oak Woods. After subsequent amendments to the initial complaint,

the case eventually came before the state's Supreme Court. In

claiming medical malpractice, Benton's complaint made four

specific allegations: (i) Oak Woods failed to ensure that Ms.

Hemming was provided an accident-free environment; (ii) Oak

Woods failed to train its staff to assess the dangers posed by bed rails

and the risk of potential asphyxiation; (iii) Oak Woods failed to

inspect the beds, bed frames, and mattress to ensure that the risk of

positional asphyxia did not exist; and (iv) Oak Woods failed to take

adequate corrective measures and protect Ms. Hemming after she

had been found entangled in her bedding on the day before her death

from asphyxiation. The complaint alleged that the facility had notice

of the risk of asphyxiation through the nursing assistants, but despite

this knowledge of the problem did nothing to rectify it.


1. The state's Supreme Court did not rule uniformly on the four

allegations contained in the lawsuit. One of them did not

constitute either malpractice or negligence. Provide explanations

and identify which allegation(s) constituted ordinary negligence,

which one(s) constituted medical malpractice, and which one was


2. Can any of these be held personally liable? (a) the two nursing

assistants, (b) the nurse supervisor, (c) the administrator. Provide


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