Atkinson - Ad Track Tuesday

DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND
PERSUASION IN THE HOSPITAL FALL CASE

Linda Miller Atkinson
Atkinson Petruska Kozma & Hart, PC
N. 11480 M-95
P.O. Box 241
Channing, MI 49815
(906) 542-6801
lmatkinson1@yahoo.com
A transcript of Ms. Atkinsons closing argument in Jean Alburger v. IGA Hospital Corp. is
included as an Attachment.
The Intersection of Psychology

Discovery with a Purpose
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
Attachment
STATE OF MICHIGAN
IN THE 56th JUDICIAL CIRCUIT COURT
JEAN ALBURGER, Personal

Representative for the Estate
of ARLISS ALBURGER, Deceased,
Plaintiff,
v File No. 04-xxx
IGA HOSPITAL CORP., a Michigan Corporation

Defendant.
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JURY TRIAL - VOL. IV OF IV

(Excerpt - closing and rebuttal by Ms. Atkinson)
THE COURT: Ms. Atkinson, go right ahead.

MS. ATKINSON: Yes, Your Honor. Thank you.
May it please the court, judges of the facts,

counsel, and members of Arliss's family.
The closing argument is the time when it's my

responsibility both to revisit those issues that now are
for you to decide and to revisit or bring out the
evidence which we offer, which either party offers, but
FOP161 AZ-13 PENCAD 1-800-631-
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which we suggest satisfies or answers those questions.
So in, in getting ready to try to do that with

all of the evidence and testimony you've heard I went back
through all of the evidence, the chart pages and the
documents. One of the elements I thought we should
consider at this point is just what burden of proof
means because weve had three days of witnesses, lots of
records and other documentary evidence and lawyer talk,
and now you will be responsible for deciding if we met our
burden of proof.

You may remember on Monday during voir dire we

asked you about so many notions, issues, other special
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knowledge you might have about care of elders, nursing
responsibilities for fall prevention, and what you know
about risks of falls. I mentioned once that we were
looking for jurors who would let us all start even at the
beginning of the trial. The judge talked about it as
being at the 50 yardline. But the concept always
reminds me of the scales of justice being even at the
start of the trial, as you see on the chart at the top
PENGAD 1-800-631-6
of this drawing, and then being tipped by evidence as

you see in the lower drawing.
Thats a diagrammatic way of illustrating the

FORM AZ-13
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burden of proof which the judge will tell you about.

The correct legal detail is that if the plaintiff has
the burden of proof on some proposition, like what was
the standard of care?, or was the standard of care
violated? for example, then the plaintiff wins that
issue when we tip the scales, even just a little. So
theses drawings show you a graphic representation of
that process that youll be deciding.
So, looking back at our chart from opening

statement I told you that the whole case is about

falls, fall risk in hospital, fall prevention, and

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nursing responsibility. I told you then that we would

prove that the rule is, as the chart says. to use all
the basic nursing tools to prevent the patient from
falling. Now having seen the evidence and heard the
evidence you can see that the question for you to
answer is:
Did any of the nurses at Defendant IGA, in particular
Nurse Carpenter Schroeder and Nurse Carillo, fail to
follow this rule; did either or both of them fail to
use their basic nursing tools to prevent their patient
from falling?
Every witness who has testified here, and every
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piece of evidence says that this is the rule and that

they did not follow this rule. We can look at this chart
from Nurse Fredericks testimony of what the basic
nursing tools are and look back over the testimony and
the records.
This evidence shows that (1) they didn't do an initial

shift assessment, (2) that they didn't have a care plan, and
(3) that they did not place a bed alarm. They did not follow
this basic rule of nursing.

During the trial youve heard some fancy terms

that lawyers use like standard of care and deviated
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from the standard of care. And the very last witness
referred to it as well, this is ideal but we don't
really expect people to do that. But the truth is
that's the rule. And even the last witness, Defendants
professional witness Nurse Moew-Cooley recognized that
this is the rule. We know if we look at all the
evidence it shows that they broke these rules. She
didn't want to say that. She just wanted to say well
that's ideal. But you could tell from what she said
and the way she said it that she knew they broke the
basic rule of their profession.
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Attachment
So the questions for you are did they fail to

comply with the standard of care and did their failures
cause injury.
In order to fulfil our responsibilities we
needed to bring you evidence of just exactly what the
basic nursing tools were. And these are written out on
this chart that is in evidence from Nurse Fredericks
testimony. Both Nurse Frederick and Nurse Morse-Cooley
said, yes, these are the tools we expect nurses to use
to prevent falls. These are the basic tools that
Defendants nurses had available and that the nurses were

required to use in order to minimize, eliminate risks of

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falling and prevent Patient falls.
I think the testimony and the evidence is

recent enough as you look through it that you can tell
which ones were used and which ones were not here.
But I thought in light of the most recent

testimony it was good to recognize something that Nurse
Morse-Cooley, Defendants witness said. She said The
FORM AZ-13 PENGAD 1-800-631-69
bed alarm was the appropriate tool. It was the

appropriate tool to have used and it wasn't used.
PENGAD 1-800-631-6989 rAwcporlgad.com
So that answers the first question: did they

break the rules? Yes. So, we go to the second question,
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about causation. And that question is: did their

breaking the rules cause injury? For this we need to go
back to the evidence. Two important pieces of evidence:
Exhibit 33 and Exhibit 34. The Nursing Tools to be used
for fall prevention as listed by Nurse Frederick is
#33, and a most important document in the evidence is
Exhibit #34 the Timeline by Nurse Frederick. Lets look
at what the tools were and what ones Defendants nurses
did not use. Lets look at how she laid this out.

There was a patient history. There was an

admitting assessment. We don't--there was a sort of fall
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risk assessment. There are some initial shift
assessments. But how did the nurses carelessness cause
Arliss Alburgers fall?
Lord knows you've looked at page 48 and page

56 and page 50 enough during the trial to know what
those show. John Carillo did not do the required
initial shift assessment any time before the fall. So
as far as he's concerned he's deviated from that rule.
There is no evidence of a patient specific

care plan in the chart. There are oxygenation status
checks sometimes.
The assistive devices, we know about the
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Attachment
bedside commode, the walker, and so on. I don't think

that was a factor.
This hospital did not have an alert system

though some do. There was a call button and they did
okay with that.
So we really get to the care plan and the

bed check. And I think when you review the evidence
with respect to those two things that every witness
testified about, every witness said those should be in
there. Those are tools that should be used. The

evidence is clear that they weren't. And that even with

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this last witness who was here there should be a care

plan. It should be an ongoing process. It should be
part of the chart that you revisit each time. And
there's even evidence in exhibit one that some nurses
did do that.
And in fact I was interested that Nurse

Frederick, in making her time line when she was talking
about causation, she said look, take a look back at some
of the earlier care on the 14th and the 15th and even
the 16th. Compare the night shift assessments of Marsha
Nichols, for example, with John Carillo, with what was
done, with actually arousing the patient, assessing the
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patient, getting her up to go to the bathroom,

anticipating her needs. Compare those three with what
was actually done on the 17th: Nothing.
Theres been some controversy among witnesses

about whether April 17 was a good day or a bad day
for Mrs. Alburger. Reading along the timeline based on
that days events in the chart, can anyone say Arliss
Alburger did not show some signs that required nursing
attention? Whether this was a bad day or not is not

the question. As you follow these signals that day,

shouldnt any of these events have raised the index of
suspicion for Ms. Carpenter-Schroeder and for John
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Carillo to be concerned about Arliss Alburger and about
her increased fall risk?
Remember Dr. Neibergs testimony from his

experience with elderly patients in the hospital? He
said, yeah, when patients begin to get better they
actually get to be more adventurous. They're so glad to
be feeling better from their acute illness that they
get to be a little more feisty. And the witnesses
agree that that is precisely when nurses need to use
all of their fall prevention tools, especially the bed
alarm.
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Attachment
Neibergs observations and Dr. Mondejars

FORM AZ-13 e POIGAD 1-800-631-6969.
testimony about Arliss Alburgers condition that day

taken together the events of April 17 the respiratory
distress while walking, the ripping out of the saline
lock - give you the evidence that Nurse Schroeder and
Nurse Carillo should have reconsidered their care plan
and their patients fall risk. A more adventurous,
active patient who might try to get out of bed taken with
her known fall prone status required a bed alarm. And
all witnesses agree that a bed alarm was the
appropriate tool.
So, those are the two questions we ask you to

answer: Did the nurses break the rules, and did that
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cause the injuries? And to summarize the evidence from

the trial I went back to the lists from opening
statement and added the Exhibit numbers so that you
can follow and note down which ones to consider
further as answers to these questions.
Exhibit number one you've worked with all

through the week, the Defendant IGA records.
Exhibit two consists of the Sparrow records and
they also contained the autopsy and the death
certificate.
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We really havent referred much to Exhibit

two, the Sparrow records, where Arliss was transferred
after the fall and where she died 63 hours later, or
to the autopsy report itself, but these are in
evidence for your consideration. The main reason we
havent had to take time to go through these is because
of this next piece of evidence listed on the chart
which is not a document but a court order. This is order
the court entered based on the agreement of the parties

that the cause of Arliss Alburger's death was injuries

from the fall. The, that's based on some of these
pieces of evidence so they're in there. But the court
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has already ordered that it is an undisputed fact in
this case that Arliss Alburger died from injuries
caused by the fall on April 17, 2002.
Next on the list are the photographs I

promised, A through G--well actually it's A through F-
As nurses and friends and Arlisss granddaughter
Candice have testified these show the kind of
friendly, active, involved, funny, loveable, mentally
sharp person Arliss Alburger was up to the time of her
death. Why is that significant? It's not just, oh,
yeah, that's the kind of family. These photographs
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Attachment
show a lively charming woman in her nineties living

independently. In your life experience today in the
21st century it's part of our common experience that we
live in a society where the life expectancy has
steadily increased, where we live in a society where we
have a larger and larger community of elder citizens.
And so we've learned some things about who among this
elder community is more likely to survive longer, who
is likely to be around longer. One is their family
history and in particular, Arliss Alburgers history.
Another thing we've learned thats part of

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everyone's common experience today is that people who

live active and involved lives, have social contacts and
close loving relationships, live longer.
The court will tell you that one of the

questions for you as judges of the facts to decide is
how long would Arliss Alburger probably have lived had
she not been killed by her nurses carelessness with
the bed alarm.
Those photographs A through F are material to

that and I invite you to look at them carefully and see
what kind of active and involved person Arliss Alburger
was.
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There is also a second set of photographs that

were taken at the autopsy. I want to tell you that
there are many more photographs because an autopsy
protocol requires a certain number. But we selected from
that just these, A through E, in order to give you an
idea of the bruises and contusions and injuries Arliss
Alburger suffered in that fall. Another question you
must answer is whether Arliss Alburger suffered
conscious pain and anguish before her death.
For examining those 63 hours from the time she

fell until the time she died these photographs give you
some references. They show some of the injuries she had,

what she was living with; two skull fractures, a fractured
pelvis, a fractured hip, a fractured arm, fractured ribs.
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This--you'll find this fracture is called the zygoma,
this ridge of bone along here that, to which your jaw
is attached. That was fractured. And you can see in
these photographs the, the bruise and the bruising around
her face.
This--it's not meant to be grisly. It's not

to be shocking. We brought you just the straight
medical photographs from the autopsy in order for you to
decide what was the extent of her suffering, shock,
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Attachment
fright, and pain in those hours. Because as the judge

will tell you that is to be considered within your job
of deciding the compensatory damages for what she
suffered herself.
Next the chart lists statistics but you're

probably relieved to see that after all that talk about
statistics and actuarial tables during voir dire we
didn't actually bring you reams of statistics except
for those that we asked witnesses about and what they
told you about, that elderly patients are 50% more

likely to fall in hospitals than younger patients, for

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example.
We did also explore the nurse's Code of Ethics

that is listed here basically because one of the things
for you to decide is what was the nurse's duty. What
was their responsibility? Was it, as the Code says and
Nurse Frederick testified to maintain a high level of
awareness, surveillance, and care in order to be
committed to the health, safety, and welfare of the
patient? Or was it, as Nurse Morse-Cooley said to
be, well okay. So it's not ideal. It's, is it good
enough? The Code of Ethics for Nurses says the
Nurses first concern is the health, safety and
welfare of the patient.
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In deciding what kind of nursing care we

want in this community the Code of Ethics can be a
guide. If we want the best we want nurses who follow
that first principle. That's what Arlisss family
wanted, what Arliss thought she was getting when she
went to the hospital.
So this was basically among the proofs on what

is the standard of care. What should the nurse do?
We brought the evidence of tools for assessing

a patients fall risk Exhibit 33. Fall assessment tools.

Fall assessment tools were mentioned by a few

witnesses. In In Exhibit one, you've already looked at
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those fall assessments, page five and six, that first
initial one, and then the initial assessments through,
for the shifts, pages 25 and 26, 29 and 30, 33 and 34,
37, 38, 42, that pack. As we went through the week you
all looked them up and looked at them so I don't need to
tell you more about them. Except to ask to what the
extent Carillo and Schroeder used those tools or not and
if their omissions were unreasonable.
The basic nursing tools to prevent falls,

that's exhibit 33, which Nurse Frederick talked about
and which I have referred to and which Nurse Morse-
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Attachment
Cooley also told you, this is the list of the tools

they had available. This is the list of the tools they
were expected to have used if they were using
reasonable, prudent care to prevent falls and by the
checks you can also keep track of the tools they did
not use initial shift assessment checking on their
patient, a dynamic careplan, and a bed alarm. What
they did not use, but should have.
And then we have a time line which is exhibit

34. This is the timeline of significant events Nurse
Frederick testified she saw in the records in

Exhibit 1 on April 17 that formed the basis of her
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analysis about how the nurses breaking the rules

caused Arlisss fall. This is a summary of her
opinion based on exhibit one and you can follow along.
And maybe follow along to satisfy yourselves

about whether Mrs. Alburger had enough indications, bad
enough indications on the 17th for her nurses if they
were conscientious, if they held the safety and welfare
of their patient as their first principle should have
considered. They should not have been feeling
comfortable about the past, but should have been
anticipating what was likely to happen to their patient
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given changes in her condition and given the statistics

the likelihood of patients falling in the next hour, two
hours, three hours of their shift. If they placed the
safety and welfare of their patient as their first
priority, as Marsha Nichols did, and consulted the care
plan, looked at signs of decreased oxygenation while on
room air, High blood pressure, spiking over the day,
ripping out the saline lock and putting it on her dinner
tray. If they placed their patients safety and welfare

as their first priority they would have concluded that

they needed to check on her promptly and they needed a
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bed alarm.
Remember Nurse Morse-Cooley said, well, it had
been assessed and taken care of. I think she said
assessed and addressed. That's not the question. The
question is was the casual attention enough? Was it
reasonable? We do know that this is a patient with a
ENGAD 1-600-631-6983 www.pongad.com
compromised lung and so we do know the likelihood that she

may have decreased oxygenation again just went up because
it's already happened once under supervision.
All of the witnesses agreed that decreased

oxygenation can cause a patient to become confused, to
FORM AZ-13
get out of bed and think maybe she's at home, and not
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Attachment
to remember the call button.
So the, the tools and the assessment and the

medical records fit together in that way.
Heres the list of witnesses whose testimony

is part of the evidence for your consideration. Now I
told you in the opening statement that there would be
witnesses but at the time I didn't spell out all their
names because we weren't sure just who all was coming.
But now Ive listed them in the order in which they
appeared. You are making your determination today,

Thursday, the fourth day of trial, but the evidence from

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the first witnesses last Monday and Tuesday is just as

important as those you heard today, maybe even more.
Dr. Mondejar came in response to our subpoena

because she is employed by the Defendant. But she was
Arliss Alburgers treating doctor, and even Mrs.
Alburgers friend. She described their history
together and her impressions of Mrs. Alburger. She
described her observations of Arliss Alburger during
that last hospitalization. You may have wondered why
did I bother to go to all the trouble of reminding you
about her thoughts about prognosis again later, here in
the rebuttal phase of the trial, reading from her
deposition. I did that because she had a conflict
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about prognosis and that was part of the evidence.

Remember earlier in the trial I asked her about Arliss
Alburger's life expectancy. I asked her three times. She
clearly felt uncomfortable about that and tried to avoid a
definite answer. She really tried not to answer it.
She was concerned that Arliss Alburger had

some, what doctors call co-morbidities, some illnesses
that could be deadly. But on the other hand she
also testified she had them under good control. So
she clearly struggled with that question.

And since you have to struggle with it too I
thought it was important for you to be reminded today
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that Dr. Mondejar testified in her deposition that on
April 17, 2002, she expected Arliss Alburger to maybe go
home in the next two or three days and be fine. Those
were her words be fine, not drop dead.
So that deposition testimony I think gave you

a little more evidence about life expectancy and Dr.
Mondejar.
When she was here earlier Dr. Mondejar told you

about her orders and how she was controlling Mrs.
Alburger's heart condition and her other conditions
and told us how much better Arliss was progressing during
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the week and how content she was with Arliss's progress
on that acute disease process, that pancreatitis.
Another part of Dr. Mondejars testimony was
her diagnosis for admitting Mrs. Alburger to the
hospital:
pancreatitis and gallstones. She never said or wrote

anything about a bowel obstruction.
Did you wonder whether Ms. Morse-Cooley when
she came today to testify as an expert for the Defense
and told you that it was her understanding Arliss
Alburger was hospitalized for a bowel obstruction

whether she was fully informed about this case at all?
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The next witness was Sue Ellen Ash who seemed

like a conscientious nurse. She told us that she was not
Mrs. Alburgers nurse that night but she was in the hall
outside her room when Mrs. Alburger fell. Nurse Ash
described what she saw that night and this sketch,
exhibit 26, is in evidence for you to look at in the
jury room as you consider whether a bed alarm would have
alerted Nurse Ash or Nurse Diaz to go to Arlisss aid
before she fell. She described seeing the upper part of
Mrs. Alburger fall through that doorway, strike the
doorframe, fall to the floor.
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And then this Exhibit 26--we all know

this is not to scale so we're not measuring things by
it, but really examining their relative proximity
to picture what happened.
If a bed alarm had been in place it would have

been here on this bed. And we know from Ms. Frederick's
testimony that the bed alarm was a pressure system that
would have sounded. Every witness who talked about that
alarm said, oh yeah, I've heard them. It sounds an

alarm as soon as the patient relieves the pressure on

the sensor.
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So every witness who testified about the bed
alarm told us that has there been a bed alarm here the
nurses would have known that Arliss Alburger was out of
bed before she fell. And theres no dispute that
Defendant had bed alarms available and that the nurses
had not put one in Arliss Alburgers bed.
Next Nurse Carpenter Schroeder testified by

deposition mostly about what she did not do. Then Nurse
Suzanne Frederick testified.
Nurse Suzanne Frederick is a clinical nurse

whose job for the Department of Justice is to go into
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hospitals and nursing homes and investigate falls,

investigate causes of falls, and help train the nurses
at their institution to prevent falls. She is the only
person with any expertise in investigating hospital falls
and preventing falls who testified. She explained her
opinions that the nurses here broke the rules and failed
to follow a care plan, failed to place a bed alarm, and
that these acts of negligence caused Mrs. Alburgers fall
and injuries. The bases for those opinions she summarized
in Exhibits 33, And 34.
She said each of these fall risk factors is very

important in the assessment. Even Nurse Morse-Cooley
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agreed that if the patient is confused or disoriented

that's a factor. And, and we don't know the night of
the 17th into after midnight on the 18th, because nobody
looked, what her status was. You may have been asking
yourselves, why does she keep asking if they saw
whether she had oxygen on or not? And the answer
lies in these fall risk factors: we know that
oxygenation is an important factor that can cause
confusion and disorientation and we know that Mrs.
Alburger had had difficulty with oxygenation earlier that
day. So, it was a warning sign, a warning to nurses who
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kept their patients safety and welfare as their #1

priority.
So if the evaluation of the risk factors had

been sufficient, if Mr. Carillo assessed his patient
sufficiently he should have realized that fall prevention
was an issue: he should have put in a bed alarm.
As Nurse Fredericks testified, Mrs. Alburgers

FORM AZ-13 PENGAD 1-509-631.69
medications themselves were important because the number

of drugs that a patient is already taking as a regular

part of their maintenance must be understood by the

nurses because that may increase their risk of falling.
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If you look at the fall assessment in the
chart on page five and six you'll see that there is
nothing in there for an assessment of the medications.
So it is clear from the evidence that the risk

factors were not adequately evaluated. There was no
care plan and no bed alaram: they broke the basic
nursing rules.
Now with all the questions and witnesses and

argument over these four days you might think there are
lots of disputes. But I looked back at all of the
testimony and all of the evidence and there are
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actually some undisputed facts, things we all agree

on. I came up with 13 that Ive listed here. Ill
leave them up here in case Mr. Wyngarden disputes
any of these.
First, fall prevention is the nurse's

responsibility. Next, the initial shift assessment
should be done immediately at the start of the shift.
Next, Frequency of assessment and intervention is
determined by the patient needs and conditions.
Fourth, the nurse's responsibility to assess includes

anticipating patient needs. Fifth, most falls in the

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hospital are preventable. Sixth, Nurses know that

patients get up without using the call button. Every
witness said that. We know it happens.
Seventh, Arliss Alburger was at increased risk

for falling. Everybody agreed. Eighth, injuries from
the fall caused her death. Everybody agrees; that's
the court order.
Ninth, a fall risk care plan is a standard

part of the patient's chart. Every witness agreed to
that. A care plan is mentioned in her chart but there is
no care plan in this record. And the court will
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1
instruct you that you are entitled to treat the absence of
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the care plan as evidence against the Defendant in
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determining the evidence when you find that there should
4 have been something there that isn't.
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Tenth, if a bed alarm had been in her bed on the
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17th and 18th the nurses would have known she was out of
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bed before she fell. Eleventh, bed alarms were
8 available at Defendant IGA. The nurses at Defendant IGA
9 had used bed alarms. John Carillo put one in there

to afterward.

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Twelfth, if a bed alarm had been there and sounded the
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12 nurses nearby could have come to her aid before she fell.
13 That we can tell. And- thirteenth - as a patient with
14 osteoporosis she was at increased risk for falling. Dr.
15 Neiberg told you that.
16 So did Defendant IGA, in particular the nurses

17 at Defendant IGA, did they follow the basic nursing rule
18 standard of care for protecting their patient with a
19 commitment to a safety? Not just a good enough. Not
just a, well, okay for today kind of rule. Or well,
FORM AZ-13 0 PENGAD 1-800-631
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21 it's late so I'll do it later kind of rule. But a
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commitment to safety. Did they break that rule? Yes.
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25
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If they broke that rule and it caused Arliss

Alburgers injuries and death then, as the court
instructs you, we've sustained our burden tipped
those scales - and the law requires you to assess
compensatory damages. My job, our job, was to bring
you the evidence of what the damages are.
Both the Sparrow Hospital bill and the funeral

bill are in evidence. We don't claim that the medical
treatment at Defendant IGA was caused by this injury.
That was before. So we only claim medical expenses for

the time at Sparrow to which Dr. Mondejar transferred

Ms. Alburger so that she could be treated. And that's in
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evidence as exhibit 36. And also in evidence is the

funeral bill as exhibit 35.
I added it up to a little over $13,000.00.

Both are in there for you to examine. But I think it was
about 13 five or so. Those are the damages that have a
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price tag.
You may recall in opening statement I
mentioned that there are two kinds of damages the law

allows in these cases: those with a price tag, like
medical bills, and those without a price tag, like pain.
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One of the hardest issues to analyze is those damages
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which the law allows as losses but which don't have a
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price tag because we have to try to figure out what
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their value is. Dollars dont heal pain, but they are
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the only remedy the law allows. Perhaps these give the
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family resources to honor Arlisss memory. Perhaps
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these damages translate a message about how serious
8
patient safety is in this community.
9
And that's why Candace was here - to give you insight

10
into the family, what Arliss meant to Jean, what Arliss

11
meant to each of her grandchildren, and what they have
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12
lost because she died on April 20th, before her
13
anticipated life expectancy had passed.
14
What is that anticipated life expectancy? Did
15
anybody tell you exactly? No. Can I tell you exactly?
16
No. She was 93. She had all of the good social contact
17
to make her life expectancy longer. The evidence is that
18 she had members of her immediate family who lived beyond
19 the age of a hundred. That's fairly relevant to whether
20 she would live further. Dr. Mondejar said she expected
21 her to go home and do fine.
22
Putting that all together as members of the
FORM AZ-13
23
24
25
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Attachment
jury you can decide, was it more likely than not she was
going to live to a hundred? If she had heart, a heart
disease or if she had conditions that might bring her to
death sooner than a hundred was it more than three days?
Probably some of those co-morbidities were tough

things. Dr. Mondejar had them under good control. But
probably the arrhythmia--the heart arrhythmia was a
concern. It might have, in the normal course of things
have ended her life sooner than age a hundred, but
longer than three days.

I think you could find that because she was

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active and otherwise healthy and made good progress in

the hospital that she could have been expected to live
three to four more years. But that's something for you
to decide. Certainly we don't have evidence that she
would have lived shorter than that.
So if she lived three to four more years and
given the constant exchanges and friendship and
gathering and companionship between her and Jean, like
sisters, then one, and the five grandchildren--I
suggested earlier that the value of the companionship
that was lost by her premature death was probably in the
area of 100,000. That would be something like 25,000 a
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1
year for about four years or it could be $1,000.00 a
2
year for a hundred years. But I don't think she was
3
going to live that long.
4
Then the other question is the 63 hours of her

5
pain and suffering. Nothing that is any part of our law
6
school training, and I'll bet not anything that was any
7
part of any of the education you've shared with us,
8
tells us what can reasonably compensate for Arliss lying
9
in bed at Sparrow Hospital for 63 hours with a fractured

10
skull, fractured pelvis, fractured jaw all these

11
fractures. It's hard to know what it meant to be 93, to
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12
be thinking you were getting better and to suddenly have
13
multiple fractures and bruises that required morphine at
14
Sparrow for those 63 hours. It might be reasonable to
15
ask ourselves, well what are we willing to pay a dentist
16
for half an hour to be free of the pain of the drill. Is
17
that any kind of index?
800-631-6989 www,panged.com
18 The degree of fright and shock and pain is really for

19 you to evaluate based on the evidence. I suggested in
20
opening statement that given 63 hoursgiven the extent
of the injuries, that $63,000.00 was not unreasonable.
21
But that's certainly up to you to decide based on your
22
own experience.
23
24
25
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Attachment
There have been books written about people who

asked for death, people who are in such pain or illness
or worry or anxiety that they pleaded for death. But
there has never been anybody who pleaded for more pain,
but pleaded for relied from pain. And that's your
evaluation.
After Mr. Wyngaarden fulfills his
responsibility to you in closing argument because we had

the burden of proof I have some few minutes to come back
and respond to some of what he says.
But right now I feel compelled because of the

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degree of attention and diligence and concern you've

demonstrated as jurors this week to thank you on behalf
of the family and for Mr. Kozma and myself for being
such diligent jurors.
Our job of producing the evidence and
providing the case for your resolution is almost done

and I look forward and we look forward to putting it in
your hands for resolution.
Thank you.
(At 2:39 p.m., Ms. Atkinson's closing argument

concluded)
(At 3:03 p.m., Ms. Atkinson's rebuttal begins)
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THE COURT: Rebuttal, Ms. Atkinson.

MS. ATKINSON: Thank you, Your Honor.
I love magicians. I love going to watch

magicians. I particularly like watching them live
because I know enough to know that what they're doing is
skillful misdirection and that they're making it look
like something else.
And one of the principle tools of a magician

is distraction. Don't look at this, what I'm doing over
here. Look over here. And while you're looking over

here I'll do something over here.
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The question isn't from a medical point of
view did Arliss Alburger have a better day on April
17,2002, than she had the day before. The question is
given the nurses' special knowledge and their duty to
the patients safety and welfare, didnt the changes in
her condition require a bed alarm to protect her from
falling.
So it's not look over here and see all this

distracting stuff about no telemetry. Look over here
and ask what should the nurses have paid attention to
now that she's getting more adventurous, but still
has some confusion and decreased oxygenation do we
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Attachment
have to protect her so she doesn't get out of bed?

Every witness who considered that question was, oh,
yeah, as they get better they get to be more of a
concern for falling because they get to feel like they
Because there was one. There should have been one. I
think it's clear there was one otherwise they wouldn't
have had those days when the nurses checked care plan
and review. So that raises the question of why isn't it
there now? Was it removed?
Did the missing care plan specify a bed

alarm? Based on the risk factors, it should have

required a bed alarm. There was one in this chart at

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some time: Is that what it said? And it's not there.

Why not?
And so the instruction that the court will

give you about the evidence that the care plan should
have been there, it was there before, and now it's not
there, isn't just about a piece of paper? Did it say
use a bed alarm? Thats very important. And it would
conform to Nurse Morse-Cooley's testimony that the bed
alarm was the appropriate tool at the time.
So the fact that it's not there entitles you

to suspect that it would have confirmed our claim.
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Why does the standard of cAre require a bed alarm for

Arliss Alburger? Because these nurses were charged with
prudent care of a vulnerable, elder, fall risk patient
and the consequences of her falling are too serious to
take the risk. That's why I asked Nurse Morse-Cooley, Do
you get a one free patient fall that is enough to tell the
nurse to put in a bed alarm? What did she say? No, you
don't she said. You're supposed to anticipate and use
your tools to prevent this disaster that happened.
Episodic occurrences are exactly what bed

alarms are for because they are constantly on the, on

the job. They don't hurt. They're entirely feasible
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and they don't interfere with your other patient care.
It was entirely reasonable to put one in Arliss
Alburgers bed.
Mr. Wyngaarden talked about the verdict. You

know I'm always amused in the Law & Order shows when the
judge says, did the jury reach a verdict and the
foreperson says yes, we have, Your Honor, and they hand
the paper back and forth, and then they read it and it's
like six words. Because the verdict form you're going
to have to deal with is eight questions, several pages,
and there are instructions to go with it. Here is what
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Attachment
it will look like:

The first question is:
Was the defendant nursing staff negligent

in one or more of the ways we alleged?
Based on the evidence that we've reviewed for you that

question should be answered yes. And the, each, the
verdict form contains instructions on what to do about
it.
Then the next question you are to answer is:

Did the plaintiff sustain injury or
damages?
Now the plaintiff in this case remember is Arliss

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Alburger and her family; injuries for her, damages for

both. The answer to that is yes. That's very
clear. In fact it's probably not contested.
Question number three:
Was the defendant's negligence--that is the

nurses' failure to--let's be straight.
Was the fact that the nurses broke the
basic rules a cause of injury or damage to the

plaintiff?
And the answer to that is clearly yes. They were the

ones in charge of fall prevention. They were the ones
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who didn't use their most appropriate tools. And she

fell on their watch. It was their job. Did it cause
her injury and damages? Yes.
Question number four:
What's the total amount of damages to the
present date for economic damages claimed by

the plaintiff?
And this says such as, but the only damage is
economically their claim are the funeral and burial
expenses and the medical expenses at Sparrow. And the

total of that, as I said earlier, is somewhere over

$13,000.00. A total of $13,664.72 .
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The next question is:
What is the total amount of plaintiff's

damages to the present date for non-economic
damages claimed by the plaintiff?
The, the only claims are for past because the plaintiff
and the defense agreed this being 2009, Arliss having
been born in 1909, that she was probably not going to go
beyond a hundred. So all the damages are past and just
when those damages stopped is up to you.
I suggest that if you, for example, were to

say well she would have lived four years beyond 2002,
FORM A2-13 e PENGAD 1-800-631-6
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Attachment
you're talking to up to 2006, then it would be for that

period of time, the, both the injuries, fear, shock,
pain and suffering for the 63 hours, plus the four years
of lost companionship and society.
Arliss Alburger might have lived more than

four years after 2002. But it's also possible that her
ability to be a great companion and go out every day to
lunch with Jean and listen to Jean's troubles and tell
her that's, I'm sorry dear, and hold her hand, might not
have been as acute.

So if we were to use four years for that and

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the 63,000 then the total amount of the damages that

would go in there would be about 163,000.
The reason this verdict form, question number

five, is a little bit confusing is that on my chart
there are two separate things, the family's damages and
Arliss's damages, and on here they're joined together.
And the total of the verdict would be these two figures
for $176,000.00.
The next question:

Was plaintiffs decedent's negligent?
Was Arliss Alburger negligent? Negligent is lawyer

FORM AZ-13 0 PENGAD 1-800-631-698
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talk. It means she failed to do what a reasonable adult in

her situation, 93, recovering from a serious illness,
having been through two episodes of scary stuff that
day, failed to do. There is no testimony, there is no
evidence at all that anything she did was negligent.
There's testimony that she may not have used

the call button. According to the evidence here, if she
didn't that was certainly foreseeable to her nurses.
Nurses certainly knew times when patients didn't use

call buttons and got up anyway. Is that negligent or is

it just forgetful? Or confused?. If she didn't is it
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negligent or had her oxygen saturation dropped so low
she was confused?
The problem is that if you think, if you buy
the defendant's story then you're letting the fact that
they didn't do their job to tell you about her
oxygenation convert itself magically into her fault.

They don't know what her oxygenation was.
They don't know if she was too confused to find the call
button.
So there's no evidence that she was negligent

and I submit that your answer to that question number
six must be no.
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Attachment
1
Number seven depends on question number six.
2
If you don't find she was negligent at all then you
3
wouldn't find that any of her negligence was involved as
4 a cause.
5
If you were inclined to think that failing to
6
use a call button was actually negligent then the next
7
question is was that a cause of her injury? If the
8
standard of care for the nurses required a bed alarm, if
9
that care plan said use a bed alarm and they didn't do
10
it, then the fact that she didn't use a call button is
11
irrelevant because had there been a bed alarm the call
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12
button would have been irrelevant. It has no causal
13 basis. So whether she did it or not it didn't cause her
14 any harm.
15
Eight, if you were to find some negligence by Arliss and you
were to find it was a cause then start with 100 percent and
16 you consider the nature of each party's conduct and try to
separate how much was Arliss's responsibility, how much
17 was their responsibility, and, and allot percentages
totaling a hundred.
18
19 I think your answer here should be a hundred

percent. It's possible you could say, oh, well the call
FORM AZ-13 (1) PENOAD I-BUD-631-69
20
21
button played some role in it so maybe it's 99 percent
to the nurses who were in charge, had the responsibility
22
and didn't do it, and one percent for Arliss who got
23
24
25
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confused and didn't use the call button. Then the judge
in the instructions has advised you that he'll reduce
the total amount of damages as you find it by the one
percent or the percentage that you find her negligent.
I think this should all be no but you're the judges of

the facts.
And then the foreperson signs the verdict and

dates it and the court will tell you more about those
deliberations.

Historically we celebrate our civil justice system:

we come here advocating for the plaintiff. They come
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here advocating for the defendant. And we each have to
do our jobs adversarially to get to the truth.
The judge rules on the law. But what we

celebrate most is that You come here as jurors as the
conscience of the community, from the community, to say
this is what we accept. This is what we want. This is
what's right. This is how we resolve the dispute.
Consider the basic rules here, rules all the

nurses acknowledged, that they must be committed to
the safety of the patient, and use all their nursing
tools to prevent falls. Consider the rules that they
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Attachment
broke.
I Ask you as the conscience of the community is

this the kind of care for vulnerable elder patients we
want in our community? not ideal, just good enough?
NO.
Or do we want them to use all their tools for

the safety and welfare of their patients? Isnt the
answer is yes.
And it's because of your willingness to come

and resolve this dispute, on behalf of the plaintiff I

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can now say we've turned the evidence over to you and we
will be waiting for your verdict.
(At 3:19 p.m. rebuttal by Ms. Atkinson

concluded)
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Atkinson - Ad Track Tuesday

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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND

PERSUASION IN THE HOSPITAL FALL CASE

The Intersection of Psychology

IN THE 56th JUDICIAL CIRCUIT COURT

JEAN ALBURGER, Personal

IGA HOSPITAL CORP., a Michigan Corporation

JURY TRIAL - VOL. IV OF IV

THE COURT: Ms. Atkinson, go right ahead.

May it please the court, judges of the facts,

The closing argument is the time when it's my

which we suggest satisfies or answers those questions.

So in, in getting ready to try to do that with

The Intersection of Psychology

Discovery with a Purpose

of this drawing, and then being tipped by evidence as

Thats a diagrammatic way of illustrating the

burden of proof which the judge will tell you about.

So, looking back at our chart from opening

statement I told you that the whole case is about

falls, fall risk in hospital, fall prevention, and

nursing responsibility. I told you then that we would

Every witness who has testified here, and every

piece of evidence says that this is the rule and that

This evidence shows that (1) they didn't do an initial

The Intersection of Psychology

Discovery with a Purpose

So the questions for you are did they fail to

Defendants nurses had available and that the nurses were

required to use in order to minimize, eliminate risks of

falling and prevent Patient falls.

I think the testimony and the evidence is

But I thought in light of the most recent

bed alarm was the appropriate tool. It was the

So that answers the first question: did they

about causation. And that question is: did their

The Intersection of Psychology

Discovery with a Purpose

Lord knows you've looked at page 48 and page

There is no evidence of a patient specific

The assistive devices, we know about the

bedside commode, the walker, and so on. I don't think

This hospital did not have an alert system

So we really get to the care plan and the

there. Those are tools that should be used. The

evidence is clear that they weren't. And that even with

this last witness who was here there should be a care

And in fact I was interested that Nurse

patient, getting her up to go to the bathroom,

Theres been some controversy among witnesses

The Intersection of Psychology

Discovery with a Purpose

Remember Dr. Neibergs testimony from his

Neibergs observations and Dr. Mondejars

testimony about Arliss Alburgers condition that day

So, those are the two questions we ask you to

cause the injuries? And to summarize the evidence from

Exhibit number one you've worked with all

We really havent referred much to Exhibit

The Intersection of Psychology

Discovery with a Purpose

Next on the list are the photographs I

show a lively charming woman in her nineties living

Another thing we've learned thats part of

everyone's common experience today is that people who