Legal Eagle Eye Newsletter for the Nursing Profession (5)4 Apr 97 PDF Version

   Quick Summary: The fact the family sometimes allowed the patient to smoke while unattended did not absolve the home health aide from negligence for allowing the patient to smoke.

   The aide’s employer was ruled liable to pay damages for the burns the patient suffered.

   The damages included compensation for past and future medical expenses and pain and suffering, in excess of $1.2 million.  NEW YORK SUPREME COURT, APPELLATE DIVISION, 1996.


   The patient was an adult woman who had had a disabling stroke. Her right side was paralyzed, she was subject to tremors and seizures and she suffered from impaired vision. The court record did not indicate whether or not the patient’s judgment had also been impaired by her stroke.

   A home health aide left her alone in a room in her home for a few minutes with an absorbent pad around her neck, and a cigarette and lighter within her reach.

   While left unattended, the patient was severely burned from smoking. The family sued the home health aide’s employer on the patient’s behalf for negligence, and got a substantial verdict.

   The New York Supreme Court, Appellate Division, upheld the decision not to allow testimony to go to the jury that the family themselves had at times allowed the patient to smoke unattended, as that was irrelevant to the professional standard of care the home health aide owed to the patient. Eaton vs. Comprehensive Care America, Inc., 649 N.Y.S. 2d 293 (N.Y. App., 1996).