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Sidebar - You Take the Patient as You Find Them · Statutes & Stethoscopes | Trial Lessons for Medical Injury Lawyers

• 0:03
  SPEAKER_00: This is Statute 10 Steps.
• 0:06
  SPEAKER_00: I'm Tracy Libertori.
• 0:08
  SPEAKER_00: Every episode I take one place where medicine and the courtroom collide and break down what actually works.
• 0:14
  SPEAKER_00: If you're a clinician who wants this work, or an attorney who needs an expert who can hold up, you're in the right place.
• 0:20
  SPEAKER_00: Let's get into it.
• 0:25
  SPEAKER_00: Last week we talked about proximate cause and how far the law will follow a chain of events.
• 0:31
  SPEAKER_00: I mentioned one rule in passing, and it deserves its own episode because it comes up constantly in nursing home cases, and it is called the eggshell plaintiff rule or eggshell skull rule, depending on where you're talking about it.
• 0:46
  SPEAKER_00: And the short version is this you take the patient as you find them.
• 0:50
  SPEAKER_00: Let me start with two residents on the same unit.
• 0:53
  SPEAKER_00: Both are assessed as high fall risk.
• 0:56
  SPEAKER_00: Both have care plans that help with every transfer.
• 1:00
  SPEAKER_00: On the same night, both are left to get up alone and both fall in exactly the same way.
• 1:06
  SPEAKER_00: First resident is 72, fairly strong, and not on any blood thinners.
• 1:10
  SPEAKER_00: She gets bruised hip and is back on her normal routine in a week.
• 1:14
  SPEAKER_00: The second resident is 91, she has severe osteoporosis, and she's on an anticoagulant for atrial fibrillation.
• 1:21
  SPEAKER_00: She hits her head.
• 1:22
  SPEAKER_00: She develops a bleed in her brain, and she dies four days later.
• 1:26
  SPEAKER_00: Same fall, same breach, very different harm.
• 1:30
  SPEAKER_00: So can the facility argue that the second resident's death is really the fault of her own fragile body, that a healthier person would have walked away?
• 1:38
  SPEAKER_00: Under the eggshell plaintiff's rule, generally no.
• 1:41
  SPEAKER_00: The idea goes back more than a century.
• 1:44
  SPEAKER_00: One of the classic cases every law student reads is Bosburg versus Putney from Wisconsin in 1891.
• 1:52
  SPEAKER_00: One schoolboy kicked another in the shin during class.
• 1:56
  SPEAKER_00: It was a light kick, but the boy who was kicked had an earlier injury in that same leg.
• 2:01
  SPEAKER_00: And the kick triggered a serious infection that cost him the use of the leg.
• 2:06
  SPEAKER_00: The court held the boy who kicked him responsible for all of it, even though no one could have predicted how bad it would get.
• 2:13
  SPEAKER_00: And that's the rule.
• 2:14
  SPEAKER_00: If the breach causes a harm, the responsible party is liable for the full extent of that harm, even if the patient's pre-existing condition made it far worse than anyone would have expected.
• 2:26
  SPEAKER_00: The name comes from the classic example.
• 2:28
  SPEAKER_00: If you negligently bump someone's head and it turns out that they have a skull as thin as an eggshell, you don't get to say you only meant to bump a normal skull.
• 2:39
  SPEAKER_00: Now, you might be thinking, doesn't that conflict with what we said last week about foreseeability?
• 2:44
  SPEAKER_00: And it's a fair question.
• 2:46
  SPEAKER_00: Here's how the two fit together.
• 2:48
  SPEAKER_00: Foreseeability asks whether the type of harm was a foreseeable result of the breach.
• 2:54
  SPEAKER_00: A fall leading to an injury is exactly the kind of harm fall precautions exist to prevent.
• 3:00
  SPEAKER_00: The eggshell rule says that once the type of harm is foreseeable, the extent of it doesn't have to be.
• 3:08
  SPEAKER_00: So the facility doesn't escape responsibility because the injury turned out to be catastrophic instead of minor.
• 3:14
  SPEAKER_00: And for clinicians, there's an even more important point hiding in our example.
• 3:19
  SPEAKER_00: That 91-year-old resident on a blood thinner wasn't a surprise to anyone.
• 3:25
  SPEAKER_00: Her fragility was in the chart, her osteoporosis, her anticoagulation, her fall risk.
• 3:30
  SPEAKER_00: In a nursing home, the eggshell patient is the typical patient.
• 3:34
  SPEAKER_00: And that frailty doesn't only matter for damages, it also shapes the standard of care.
• 3:39
  SPEAKER_00: The more vulnerable the resident, the more careful the precautions need to be.
• 3:44
  SPEAKER_00: So, in many nursing home cases, the frailty that the defense wants to point to is the very reason the care plan needed to be followed.
• 3:52
  SPEAKER_00: Now, here's where the rule has limits, and this is where your work as an expert really matters.
• 3:58
  SPEAKER_00: The eggshell rule makes a provider responsible for the harm the breach caused.
• 4:04
  SPEAKER_00: It does not make them responsible for the patient's pre-existing conditions themselves.
• 4:10
  SPEAKER_00: If a resident already had advanced dementia, heart failure, and a kidney disease before the breach, the breach didn't cause those things.
• 4:17
  SPEAKER_00: The law generally calls this aggravation of a pre-existing condition.
• 4:21
  SPEAKER_00: The responsible party pays for the worsening they caused, not for the illness the patient already had.
• 4:28
  SPEAKER_00: Some courts go a step further.
• 4:30
  SPEAKER_00: If the evidence shows that the patient's condition was going to get worse anyway, on its own timeline, that can reduce the damages.
• 4:38
  SPEAKER_00: A resident with end stage disease and a very short life expectancy may still have a valid claim, but the value of that claim may look different.
• 4:47
  SPEAKER_00: How courts handle that varies and is the kind of question the attorney will need to think through for the jurisdiction and their own rules?
• 4:54
  SPEAKER_00: So, what does this mean for you?
• 4:56
  SPEAKER_00: It means one of the most valuable things an expert can do in these cases is separate the baseline from the harm.
• 5:04
  SPEAKER_00: Before the breach, what was this patient's condition?
• 5:07
  SPEAKER_00: What could she do?
• 5:08
  SPEAKER_00: Was she walking, eating, talking, recognizing her family?
• 5:12
  SPEAKER_00: What was her trajectory?
• 5:13
  SPEAKER_00: Was she stable, slowly declining, or actively dying?
• 5:17
  SPEAKER_00: Then after the breach, what changed?
• 5:20
  SPEAKER_00: How much and how fast?
• 5:22
  SPEAKER_00: The chart is where you find that.
• 5:24
  SPEAKER_00: Nursing assessments, therapy notes, the minimum data set assessments in a nursing home, weights, labs, activity notes, family communications, a clear before and after picture built from the record is often the most persuasive thing in the entire case for both sides.
• 5:43
  SPEAKER_00: Here are a few things I'd want every expert to keep in mind.
• 5:47
  SPEAKER_00: First, don't let frailty become an excuse in your own analysis.
• 5:51
  SPEAKER_00: It's tempting to look at a very sick, very old patient and think, well, she was gonna die soon anyway.
• 5:58
  SPEAKER_00: Maybe she was, but that's a conclusion.
• 6:01
  SPEAKER_00: And it needs the same medical support as any other opinion.
• 6:04
  SPEAKER_00: If you can't point to the evidence, don't say it.
• 6:08
  SPEAKER_00: Second, don't overstate the harm either.
• 6:11
  SPEAKER_00: If the patient's decline was mostly her disease and the breach added a smaller piece, say so.
• 6:19
  SPEAKER_00: Your credibility depends on being as honest about what the breach didn't cause just as much as what it did.
• 6:27
  SPEAKER_00: Third, explain the mechanism.
• 6:30
  SPEAKER_00: Why did this breach cause so much more harm in this particular patient?
• 6:35
  SPEAKER_00: Anticoagulation and a head strike, osteoporosis and a hip fracture, diabetes and poor circulation, turning a small wound into an amputation.
• 6:44
  SPEAKER_00: When you explain how the patient's condition made the injury worse, you're not weakening the case.
• 6:50
  SPEAKER_00: You're showing the jury exactly why the eggshell rule applies.
• 6:54
  SPEAKER_00: And fourth, as always, leave the legal labels to the attorneys.
• 7:01
  SPEAKER_00: You don't need to write that the eggshell plaintiff rule applies.
• 7:05
  SPEAKER_00: You describe the patient's baseline, the breach, the injury, and the medical reasons it was as severe as it was.
• 7:12
  SPEAKER_00: The attorney will connect that to the law.
• 7:15
  SPEAKER_00: So here's the takeaway: you take a patient as you find them.
• 7:19
  SPEAKER_00: A fragile patient who suffers a devastating injury from a breach isn't a weaker case just because a healthier patient would have been fine.
• 7:28
  SPEAKER_00: But the breach only accounts for the harm it caused, not the illness that was already there.
• 7:34
  SPEAKER_00: Your job is to draw that line clearly, honestly, and from the record.
• 7:39
  SPEAKER_00: This is educational information, not legal advice.
• 7:43
  SPEAKER_00: How the eggshell rule and pre-existing conditions are handled can vary by state, and the attorney on the case can explain how it works in their jurisdiction.
• 7:53
  SPEAKER_00: This episode of Statutes and Step Discoveries.
• 7:55
  SPEAKER_00: If it was useful, follow the show so the next one finds you.
• 7:59
  SPEAKER_00: And if you're a clinician who wants to do this work properly, start with the Expert Report Starter Kit at Nationalexpertacademy.com.
• 8:06
  SPEAKER_00: I'm Tracy Libratori.
• 8:08
  SPEAKER_00: I'll see you on the next episode.