A Johnston County jury has awarded $175,000 to a man injured at WakeMed in Raleigh after an employee crashed into him with a portable X-ray machine.
Alfonzo Gutierrez was 73 at the time and walked with a cane, his attorney, Ellis Boyle, told the News & Observer. Gutierrez also had trouble hearing after serving in the Army and Air Force, and then as a military aircraft mechanic while a civilian.
Gutierrez had traveled to WakeMed in 2017 to visit his wife, Hazel, who was in the emergency room. When he came to the intersection of two hallways, the machine hit him "so hard that it knocked him violently to the floor," according to the lawsuit filed in 2018.
In that suit, Gutierrez' attorneys argued the Raleigh hospital had been negligent by failing to operate the machine properly or warn of any dangers. Boyle described it to the N&O as being the size of a large copier machine with a 6-foot tower in the center and operated with a self-propulsion lever — too tall for a 5-foot-2-inch radiology technologist to see over and requiring mirrors to help with visibility.
Would a flashing light have helped?
At trial, Melanie Collins, who had been driving the machine, said she did not see Gutierrez before impact.
"You've done this tens of thousands of times, but that doesn't mean that it's OK for you to not see somebody and hit them with X-ray machine, does it?" Boyle asked, according to a trial transcript.
"It's never happened to me before, so," Collins said. "And I didn't see him, so I don't understand what your question is. I'm always careful when I'm pushing the portable X-ray machine. I'm always looking around. Accidents happen."
Also at trial, Boyle asked WakeMed risk management patient safety Director Betsy Seymour if the hospital could place flashing lights on top of the machine.
"We, as the hospital, cannot adjust the machinery of the hospital," Seymour said.
"So, as the patient safety director you can't make changes to put a flashing light on an X-ray machine?" Boyle asked. "Is that correct?"
"That's not what I mean," she said, according to a transcript. "We cannot alter the machinery is what I meant."
"So you can't put a flashing light on top of it?"
In a statement, WakeMed said, "First and foremost, it's important to clarify that this is not a patient care scenario. A staff member moving portable equipment bumped into a visitor, and the visitor filed suit regarding the incident. WakeMed defended the case and is pleased that the jury's award was far less than the damage amount sought by the plaintiff."
In its own legal filings, WakeMed admitted that Gutierrez fell and that the machine reached the intersection at about the same time, but it argued contributory negligence — meaning the plaintiff was partially at fault.
North Carolina is one of few states where the law applies the doctrine of contributory negligence, meaning plaintiffs lose the case if a defendant proves they were even 1% responsible for their injuries.
During the trial, Dr. Robert Brown, an orthopedic spine surgeon in Raleigh, testified that Gutierrez had new back injuries not associated with his earlier back issues or surgery. It is also common, the doctor said, for a herniated or ruptured disc to trigger pain in the leg several days later. Brown recalled the patient telling his primary care doctor that the pain was a "high number" out of 10.
"I think he was miserable," Brown testified.
Boyle called the award "extremely fair" considering Gutierrez' permanent back pain.
"What they did in this case sent a clear message to WakeMed," he said. "Next time, take responsibility for what you did. Don't blame the victim, the patient or their family. ... What you'd really like is to have is a time machine to go back and repair the errors that caused the damage."