Home E-Weekly May 23, 2017

Elderly Patient Falls off Operating Table During Procedure

Published: May 22, 2017

MATTHEW CUMMINGS, MD, is accused of being distracted during the case.

A North Carolina surgeon is the target of a revived lawsuit filed by an elderly woman who fell off an operating table during a cardiovascular procedure in 2012.

Matthew Cummings, MD, is accused of failing to monitor and control the body of Marjorie Locklear, who was 75 at the time. The complaint accuses Dr. Cummings of becoming distracted and failing to "position himself in close proximity to [her] body" during the procedure.

Ms. Locklear was "opened up and had surgical tools in her," says the complaint. As a result of the fall, she suffered a concussion, developed double vision, injured her jaw, and was battered and bruised on the left side of her body, she says. She's also repeatedly had nightmares about the incident, she says.

Asby Fulmer, one of Ms. Locklear's lawyers, tells Outpatient Surgery that Ms. Locklear's "leg twitched" while she was under anesthesia, and she simply rolled off a catheterization table.

Initially, the suit, which also names Duke University Health System and Duke University Affiliated Physicians, was dismissed, because Ms. Locklear's lawyers didn't follow North Carolina rules for filing a malpractice case. But in a split decision, an appeals court reinstated it, determining that it was really a case of negligence, even though her lawyers had framed it as one of malpractice.

The question, said the court, was whether the decisions leading to the fall required "clinical judgment and intellectual skill." Had it been a case of medical personnel failing to properly use restraints, it would be medical malpractice, said the majority. But this sounded more like the "type of injury resulting from actions not requiring specialized skill or clinical judgment."

Calls to Dr. Cummings and Duke University Health System were not returned.

Jim Burger

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