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Subsequent Remedial Measures in Maine

gloveimagemorguefilemelodi2.jpgAfter an accident, the responsible party may put into practice remedial measures to prevent the type of injury that occurred from happening again. If you are the victim of an accident that could have been prevented, you may believe that the remedial measures prove the responsible party was negligent. However, only under limited circumstances are those measures admissible in evidence.

In a recent Maine Supreme Court case, a deceased woman’s estate appealed a judgment in favor of the nursing home where she had fallen and died. The woman was 85 when she died. The nursing home had created an individualized care plan for the woman, as it did for all its residents. The plan accounted for her propensity to fall, and it was regularly updated to show her current condition and inform the staff of the level of assistance she required.

The woman routinely got up several times a night to use the bathroom, often without asking for help. The nursing home could not restrain her from doing this without a physician’s order. However, its staff was alerted by an automated bed alarm every time any resident got out of bed at night.

On the morning of her fall, the care plan noted the decedent needed “one assist” when walking to and from the toilet. The nurse’s aide assigned to care for her heard the bed alarm and went to check on her. She found the woman sitting on the toilet. The nurse’s aide understood that “one assist” meant that when the woman was using the toilet, the attending nurse’s aide was supposed to stay nearby and help her as necessary, but respect her privacy.

On that morning, the aide didn’t have sanitary gloves within reach and asked the woman to stay put so she could get gloves that were near the entrance. However, while she was getting the gloves, the woman fell and hit her face on a trashcan, which caused a severe laceration. She was hospitalized and died one week later from complications related to her injuries.

The woman’s estate sued the nursing home for professional negligence under the Maine Health Security Act (MHSA). The estate filed a notice of claim that included the assertion that the nursing home negligently treated the woman by leaving her alone in the bathroom, thereby causing her death. It presented its claim to the mandatory pre-litigation screening panel. The estate’s expert witness expressed criticism of the aide for leaving the woman alone in the bathroom and failing to keep gloves available in the bathroom.

The screening panel made liability findings that were not part of the record. Subsequently, the estate sued in Superior Court for negligence. Before trial, the nursing home asked the court to exclude evidence that it had installed glove dispensers in the bathrooms after the fall happened. The nursing home explained it would not argue against the plaintiff’s claim that it would have been feasible to have glove dispensers in the bathroom or to have CNA’s carry gloves. The court granted the motion on the grounds that the addition of glove dispensers was inadmissible evidence of subsequent remedial measures.

At trial, the estate introduced an incident report that was redacted to prevent the jury from learning that glove dispensers had been installed after the woman’s fall and that CNA’s were instructed to carry gloves with them. The estate told the jury that the bulk of the negligence had to do with whether glove dispensers should have been more readily available to the CNA at the time of the fall. When questioning the CNA about her decision not to carry gloves, the CNA testified that she was personally concerned that carrying gloves could spread infection. The estate argued that this testimony raised a feasibility argument and that the court should admit the evidence of subsequent remedial measures. The court denied the estate’s request. The jury found for the nursing home.

Among other things, the estate challenged the court’s exclusion of evidence about subsequent remedial measures taken after the woman’s fall. The Maine Supreme Court explained that under Maine Rule of Evidence 407(a), when remedial measures are taken after an injury that if taken prior to the accident would have made the injury less likely to occur, evidence of these measures is not admissible to prove negligence. The rule does not require exclusion of such evidence, however, when it is offered to disprove a defendant’s claim that it would not have been feasible to take precautionary measures.

The Maine Supreme Court held that, for purposes of this rule, the defendant does not disputethat the measures were feasible if it concedes feasibility before trial, and the plaintiff nevertheless tries to get the defendant to testify on this issue, as happened here. The Law Court concluded that the lower court had properly excluded the evidence of subsequent remedial measures.

If a loved one is hurt or killed due to nursing home negligence, you should consult a Maine personal injury attorney about filing a claim. At Briggs & Wholey, our knowledgeable attorneys are available to answer any questions you may have. To schedule a free consultation with an experienced advocate, please contact Briggs & Wholey, LLC at (888) 596-1099 or through our website today.

More Blog Posts:

Avoiding Fatal Road Accidents in Maine, Maine Personal Injury Lawyers Blog, May 26, 2014
Motorcycling Risks to Older Bikers in Maine, Maine Personal Injury Lawyers Blog, June 10, 2014
Photo Credits: Morguefile, Melodi2

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