Legal Perspective: Employee’s Alleged Use of Soiled Scissors Results in Real Harm

A home care client suffered infection and leg amputation after an employee allegedly trimmed dead skin off the client's foot with rusty scissors that had been used to cut off a soiled diaper. In a lawsuit brought against the agency and the employee, the Supreme Court of New York, Appellate Division, First Department, has affirmed denial of the agency's motion for summary judgment, allowing the suit to continue.

The employee used rusty scissors to cut the client's soiled diapers, then used the same scissors to cut dead skin off the client's foot, according to the allegations. The client suffered a foot wound, which became infected. Ultimately, the client required an above-the-knee amputation.

Acting as administrator of the client's estate, the client's son sued. When the agency moved for summary judgment, the trial court dismissed the motion. The agency appealed.

The appellate court affirmed denial of the agency's motion for summary judgment, allowing the suit to continue. Summary judgment was inappropriate because there were unresolved questions of fact, such as whether the employee breached a duty of care to the client. In her deposition testimony, the employee denied using the scissors to cut skin off the client's foot. By contrast, the plaintiff testified that he noticed a "straight cut" on the client's foot at about the same time as he noticed the pair of scissors on the TV stand. Medical records and a report prepared by the agency documented the plaintiff's complaints that the employee had trimmed the client's foot with rusty scissors. Thus, the evidence raised credibility issues, which are matters for trial and cannot be resolved through summary judgment.

Another unresolved factual issue was whether the alleged negligence proximately caused the client's injuries. An expert affidavit submitted by the agency opined that a blister that developed into an ulcer caused the foot infection and amputation and that the client's injuries were "clinically unavoidable" given the client's preexisting medical conditions. But an expert affidavit submitted by the plaintiff opined that the infection was caused by fecal bacteria, which do not occur naturally on common surfaces, and that it was likely that the scissors used to cut the soiled diaper were reused on the client's foot. Because these conflicting expert affidavits raised triable issues regarding the question of causation, summary judgment was inappropriate. The appellate court affirmed denial of the agency's motion for summary judgment, allowing the suit to continue. (Curry v. Martin, 210 A.D.3d 491 [N.Y. App. Div. Nov. 15, 2022])

ECRI Commentary: Healthcare organizations should provide job-specific infection prevention education and training to all healthcare personnel for all tasks, according to the Centers for Disease Control and Prevention's Core Infection Prevention and Control Practices for Safe Healthcare Delivery in All Settings. Training should be required before individuals begin performing their duties and at least annually thereafter. Additional training should be provided in response to lapses in adherence and to address changes or newly recognized threats. Processes should be developed to ensure that personnel understand and are competent to adhere to infection prevention requirements. Written infection prevention policies and procedures should be available, current, and evidence-based. In addition, organizations must ensure that personnel have access to the equipment and supplies that they need in order to perform their duties and that all equipment and supplies are in good condition.

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This abstract is a summary of a recent court decision, verdict, settlement, or other action affecting healthcare organizations and their risk management programs. When reviewing this abstract, keep in mind that laws and court decisions vary among jurisdictions and that decisions of lower courts may be overturned on appeal. For specific legal guidance regarding the significance or applicability of this decision, contact legal counsel.