While the concept of medical malpractice normally connotes mistakes made by highly-trained medical professionals, the Pennsylvania Supreme Court has recently made clear that the failure to properly perform a normal, every day activity such as bathing a patient can be medical malpractice. In Strine v. Commonwealth of Pennsylvania, a four-member majority of the court has ruled that the act of bathing a totally-dependent-elderly patient is a medical service under Pennsylvania law, thus triggering insurance coverage from Pennsylvania’s former Medical Professional Catastrophe Loss Fund (CAT Fund).
Marie Barnes was a resident of Chester Care Health Center, a commonwealth-licensed nursing home. Ms. Barnes, who was seventy-five, suffered from severe dementia, and could not walk, speak, or feed herself. Because she was bedridden and suffered from bedsores, Ms. Barnes’s doctor ordered a daily whirlpool bath to treat the bedsores. However, Chester Care did not have a whirlpool bath; as a result, Ms. Barnes was bathed every day as opposed to the normal practice of bathing patients twice a week. In June of 1996, a certified nursing assistant employed by Chester Care drew a bath but failed to check the water temperature, which was 138 degrees. When the nursing assistant placed Ms. Barnes in the bath, she suffered severe burns and died three days later.
Chester Care agreed to settle a wrongful death action for $1.5 million. Under then existing Pennsylvania law, Chester Care’s first $200,000 of insurance coverage was provided by a private insurance company. The next $1 million of coverage was provided by the CAT Fund. (At present, the second level of coverage is now provided by the Medical Care Availability and Reduction of Error Fund, though the required amounts of primary coverage and MCARE coverage are now only $1 million, as opposed the previous $1.2 million.) However, the CAT Fund refused to pay its coverage, arguing that it insured only for “professional liability” “resulting from the furnishing of medical services which were or should have been provided,” and that bathing Ms. Barnes was not a “medical service.”
In an opinion authored by Justice Saylor (and joined by Justices Newman, Eakin and Baer), the Supreme Court rejected the CAT Fund’s argument, relying primarily on the fact that Ms. Barnes was totally dependent on others for all activities of daily living. The Court also noted that Ms. Barnes suffered from bedsores, which could be treated with daily baths. Furthermore, the court rejected the CAT Fund’s argument that no special skill other than a “strong back” was need to bathe Ms. Barnes, pointing out that the nursing assistant’s required formal training included instruction on bathing. As the court concluded, “Administering a bath under these circumstances… falls outside the scope of general custodial care which can be performed adequately by an untrained employee.” Chief Justice Cappy filed a dissenting opinion that Justice Castille joined.