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Easy Questions Left Unanswered

November 09, 2016

By Find Jay on Google+

We've purposefully held back this issue of MondayMonday so we could speak about yesterday's election and be done with it. Well, hope springs eternal and reality bites, but we do have some thoughts to share.

The Heir to the Throne grew up with his best friend living next door. The two of them frequently came under the sway of the best friend's 3-year's older brother. As older brothers are supposed to do, the older brother frequently took advantage of his younger sibling by convincing him to do appropriately foolish things, which the younger brother did with bewildering alacrity.

One day, for a reason which escapes both of them even to this day, the older brother convinced the younger brother to kiss a barbecue grill while it was lit. The result was a nasty burn on the younger brother's lip which necessitated him walking around with goppy salve on his mouth for weeks. The younger brother learned two things, how-ever: (1) Be careful what you kiss and (2) always know why you're kissing it. We reminded him of this adage only last month, at his wedding.

But the lesson learned by the older brother was far deeper. Being an older brother and having a younger brother do what you tell him to do is fun. But, it's also a position of responsibility, for younger brothers believe in you and trust you. They look upon you as someone older, someone better, someone smarter, someone who will protect them.

Easy Questions Left Unanswered

That trust is a heavy burden; one which can get can your younger brother hurt if you're not careful. After all, you can't really rely on your younger brother's judgment, can you? Who's so stupid that they'd kiss a hot grill anyway?

Today, the fun is over and Donald Trump is faced with the same dilemma as that older brother. We're his responsibility and he has to see that we don't get hurt. That's his job and, if he fails, there's no one blame but himself.

The Heir to the Throne? Well, he learned a lesson too. Sometimes, it's better to have sisters.

Facility cases outlining lack of care are traditionally difficult, if for no other reason than the injured party is frequently incapable of assisting his lawyer because of death or dementia. The closed world of the facility only becomes open through documents created by the facility itself which may- or may not - tell the true story. However, those same documents can also chart the clearest course to recovery.

In Petralia v. Glenhaven Health Care Organization, 2016 NY Slip Op 07012 (2d Dep't 10/26/16), plaintiff's decedent was 88 years old and suffering from dementia. Defendant nursing home had created a care plan for the decedent which required that his bedrails were always to be raised while the decedent was in bed. The failure to raise those bedrails was a proximate

cause of decedent's fall from the bed, said plaintiff's expert, as those bedrails served many purposes, e.g. acting as a fall prevention device, reminding the decedent not to get out of bed without help, and giving the decedent "emotional comfort and feelings of security."

Defendant moved for SJ below, arguing that it didn't deviate from decedent's care plan "since the fall prevention inter- ventions called for in decedent's plan were in place when the accident occurred," "physical restraints were unwarranted", and "the nursing staff timely responded to decedent's bed alarm." Supreme Court granted SJ to defendant.

That was error, says AD2, since the evidence was that the bedrails were down at the time of decedent's accident and the failure to raise them was, in the opinion of plaintiff's expert, a proximate cause of decedent's fall (which resulted in a femur fracture and ORIF surgery.) Moreover, in the eight months decedent had been resident in defendant's home, he had fallen no less than eight times before. A question of fact seemed to prevent summary relief under these cir- cumstances, the court said.

"A facility may be held liable for the failure to follow a physician's order to use bed rails, or if the facility's protocols establish that bed rails are to be used. Since the plaintiff raised a triable issue of fact as to whether an alleged failure to have the bed rails raised was a proximate cause of the accident, the defendant's motion for summary judgment should have been denied."

Easy, huh? Then why didn't Supreme Court get it right in the first place? Good question. No answers.