Cause of Action: Hospital’s duty of care

From Weiss v. Jewish Hospital, COA, NPO, 3/25/2011

To maintain a negligence action, Weiss must show “(1) a duty on the
part of the defendant; (2) a breach of that duty; and (3) consequent injury.” Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 247 (Ky. 1992). Whether the defendant owed a duty is a question of law for the court to decide. Id. at 248. In the case at bar, the trial court found Jewish Hospital owed no duty to Weiss and granted summary judgment as a matter of law. We disagree.

The duty a hospital owes to its patients is that “degree of care and skill ordinarily expected of reasonable and prudent hospitals under similar circumstances.” Rogers v. Kasdan, 612 S.W.2d 133, 136 (Ky. 1981). Weiss
argues that this degree of care includes providing fire prevention training to
hospital staff and to anyone who uses operating rooms or to establish some other fire prevention procedure. Jewish Hospital argues that it has no duty to educate medical providers about fire prevention.

We agree with Weiss that Jewish Hospital did have a duty to provide medical personnel with some degree of training or guidance in relation to operating room fires, or at least implement some other procedure or protocol concerning the issue. “The most important factor in determining whether a duty exists is foreseeability.” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003) (citation omitted). Prior to Weiss’ operation, Jewish Hospital had experienced another operating room fire in which the patient did not survive. Also, in the modern realm of medicine where electronic devices, such as cauterizing instruments, are used in oxygen rich environments, even most lay persons realize there is a risk of fire.
Did Jewish Hospital owe a duty to minimize the risk of operating room fires to Weiss? We answer this question of law in the affirmative. What steps Jewish Hospital should have taken to satisfy this duty and whether that duty was breached are questions for the jury.

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