My dad fell in a nursing home and was seriously injured. Might he have a case?
That largely will depend on whether the fall was an unavoidable, isolated incident, or was the result of a failure of the nursing home to comply with legally required levels of care. If the fall is the result of a long-term pattern of substandard care, it could give rise to a significant claim.
All nursing homes have the obligation to properly assess the health and needs of each resident and to implement and follow a care plan. They prepare a "minimum data set" when the patient enters the facility and develop a care plan, which should, among other things, prevent likely falls. The plan may involve the use of safety devices, such as bed alarms, to show if a resident needing assistance is trying to get out of bed without help, and a toileting program, etc. In addition, the nursing home has to be adequately staffed.
Failure to regularly reassess the needs of the resident and modify the care plan or to adhere to the processes a care plan should prescribe, is negligence and the basis for a suit. In addition, the nursing home has a contractual duty to provide safe and reasonable care to its residents in exchange for the payment the nursing home receives. There may be other bases for a claim, or recovery, under state adult-protection laws.
Where there is a clear need for a fall prevention program or nursing interventions, and no action was taken, it may mean (1) the home failed to pay attention to the needs of the resident, (2) the staff was not properly trained to deal with the resident's needs, (3) there was not enough staff to properly assess the resident and implement a care plan, and/or (4) the home lacked the proper equipment to provide for this resident's safety. On the other hand, if the home improperly restrained the resident, to prevent the resident from getting up (some homes do so because it is easier for them), and he was injured in trying to "escape," the home also might be liable. Total restraints, under Federal law, may be used only as a last-resort action.
Nursing homes will typically try to explain the fall away by blaming the patient. If he fell while getting to the bathroom, they will say he failed to use the call light or to wait for assistance. However, if the equipment was not working or if such calls routinely went unanswered because of understaffing or for some other reason, that does not absolve the home. If they claim the staff warned the person about not getting up alone, that does not take away the home's duty to have adequate safety devices. And if the resident has Alzheimer's or other mental lapses, giving him warning instructions that he cannot remember will not be sufficient to satisfy the facilities duty of care. Although "accidents happen," and a nursing home cannot prevent every fall, it does have the legal and moral duty to take all reasonable actions to prevent them from happening, and will be liable for failing to do so.
To determine if there is a claim in your father's case, you should talk with a nursing hotm attorney. There should not be any charge for the initial consultation, and if the lawyer takes the case, he or she typically handles it on a contingency fee basis, which means taking a percentage of any amount recovered instead of charging an hourly fee in advance. You have a limited time to file this kind of case, so you should consult an attorney as soon as possible.
It will be very helpful if you get a copy of the resident's entire chart from the nursing home. Under Federal regulations, a copy of the chart must be provided promptly (often within 2 business days) to a relative. In addition, you may want to file a complaint with the State Health Department as that will generate an inquiry that may shed some light on how the accident happened.
While advanced age and poor health of the injured person often would limit the likely recovery if your father is treated as a routine slip and fall case, a pattern of incidents and violations at the nursing home, and failure of the nursing home to adopt corrective recommendations, would make it more likely that there will be a good case and that your father, or his estate, will have a substantial recovery. And do not think that yours is an isolated case. Thousands of elderly patients fall or suffer some other kind of injury from neglect in nursing homes every year. |
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