Opinion
Case No. 96-2749
Opinion filed August 20, 1997. Rehearing Denied October 8, 1997.
An Appeal from the Circuit Court for Dade County, Robert P. Kaye, Judge.
Spiegelman and Spiegelman and Robert Spiegelman; Stuart H. Share and Mark T. Packo, for appellants.
Wicker, Smith, Tutan, O'Hara, McCoy, Graham Ford and Shelley H. Leinicke (Ft. Lauderdale), for appellee.
Before COPE and GODERICH, JJ., and BARKDULL, Senior Judge.
Appellant Pivar appeals an order granting final summary judgment in favor of appellee Baptist Hospital.
Following hip surgery at Baptist Hospital on July 6, 1994, Pivar was transferred to a private room. On July 13, 1994, Pivar showered in her room with the assistance of a nurse. When showering a patient, a nurse transfers the patient to a special wheelchair designed for showering, places a bath blanket on the floor of the bathroom to keep it dry, showers the patient, wheels the patient out of the bathroom, and then cleans up any water outside the shower area. In the early morning of July 14, 1994, Pivar fractured her femur when she slipped and fell in the bathroom.
Pivar was born on June 8, 1922. She had an urgency to go to the bathroom sometimes six or seven times per night. The urgency occurred less frequently if she took a sleeping pill, as she did the night of the fall. Pivar could not remember how often, if at all, she got up during the evening prior to the fall. Pivar awoke with an urgency to use the bathroom, rang her call bell, and when no one responded she used a walker to get to the bathroom. She placed the walker on the side of the toilet while she urinated. As she attempted to go back to the walker she slipped on something wet on the floor. When asked whether the floor was wet at the time of the fall, Pivar responded "[T]he floor was wet when I fell. I slipped on something." Pivar could not identify the nature of the substance.
Pivar brought suit and the trial court granted final summary judgment in favor of Baptist Hospital.
In granting a summary judgment for a hospital, this court has said:
"A hospital is bound to exercise toward a patient such reasonable care as [the patient's] known condition may require, the degree of care being in proportion to his known physical and mental ailments."
Sprick v. North Shore Hospital, Inc., 121 So.2d 682, 684 (Fla. 3d DCA 1960). See also South Miami Hospital v. Sanchez, 386 So.2d 39 (Fla. 3d DCA 1980) (as to duty of hospital). In reversing a directed verdict for a hospital the 1st District Court of Appeal held that the question of whether a medical center failed to exercise such reasonable care as the center's knowledge of a patient's physical condition may have warranted involved a factual issue for the jury. Stepien v. Bay Memorial Medical Center, 397 So.2d 333, 334 (Fla. 1st DCA 1981).
Baptist Hospital offered no testimony regarding the condition of the bathroom floor at the time the incident occurred. The hospital did offer testimony that in the interim between the shower and the fall their records indicate that a nurse checked on Pivar on two separate occasions. The records were silent as to any inspection of the bathroom floor.
We reverse. It was a jury question as to the hospital properly discharging its duty to a patient.
Reversed and remanded for a trial on the issues.
COPE, J., concurs.
I respectfully dissent. The complaint alleges that the plaintiff slipped and fell on water on the bathroom floor of the plaintiff's hospital room. The evidence showed that on July 13, 1994, prior to 5:00 p.m., the plaintiff showered in her bathroom with the assistance of a nurse while seated in a shower chair. The nurse placed a bath blanket on the floor to keep the area around the shower and commode dry. The nurse testified that no water splashed beyond the shower curtain. After the plaintiff completed her shower, the plaintiff dried off in the shower area, put on a clean gown, and was wheeled back to her bed. Following the shower, the nurse used the bath blanket and other towels to wipe the floor to insure that it was dry. The evidence further demonstrated that after the floor is towel dried, any remaining moisture would be gone after an hour. Further, the nurse testified that during the remainder of her shift, she returned to the plaintiff's room on several occasions and did not see any moisture on the floor.
The plaintiff testified that she has a problem with urgency of urination which requires her to urinate approximately six to seven times each night. However, if she takes a sleeping pill, she only needs to urinate four or five times per night.
On July 14, 1994 at approximately 6:30 a.m., almost 14 hours after she showered, the plaintiff went into the bathroom to use the commode. As she entered the bathroom, she did not see any wetness or moisture on the floor. After urinating, the plaintiff got off the commode and slipped on an unknown type of "wetness" on the floor. The plaintiff further testified that she did not know what type of substance was on the floor, the color of the substance, or how long it had been there.
Baptist Hospital moved for summary judgment arguing that there was no evidence that Baptist Hospital had any actual or constructive knowledge of any wet substance on the floor at the time that the plaintiff fell or that the bathroom constituted an "unsafe, hazardous and defective condition." The trial court granted Baptist Hospital's motion for summary judgment.
Under the facts of this case, the trial court correctly granted Baptist Hospital's motion for summary judgment "where a reasonable inference, creating a presumption of notice on the part of the defendant [Baptist Hospital] could not be drawn from the facts reflected by the record." Hamideh v. K-Mart Corp., 648 So.2d 824, 825 (Fla. 3d DCA), review denied, 659 So.2d 271 (Fla. 1995). The fact that the plaintiff slipped in the bathroom on an unknown type of "wetness" approximately 14 hours after taking a shower when the nurse thoroughly dried the area is insufficient to create an inference that the plaintiff slipped on water that accumulated when she showered. Therefore, under the circumstances, there can be no reasonable inference that Baptist Hospital had any actual or constructive knowledge of an unknown type of "wetness" on the bathroom floor.
Further, although the complaint does not allege that the plaintiff fell as a result of the nurse's failure to respond to the call bell, the majority opinion does seem to imply that Baptist Hospital's liability is based, in part, on its failure to adequately respond. If the complaint had alleged a cause of action based on the nurse's negligence in failing to respond to the call bell, I would be inclined to agree with the majority. However, since the complaint is not premised on the nurse's negligence in failing to respond to the call bell, but solely on the accumulation of water on the bathroom floor as a result of the plaintiff showering approximately 14 hours before the fall, I would affirm.