Benjamin R. Gideon, trial lawyer and partner at Berman & Simmons

Evaluating The Nursing Home Case: Accidents, Falls and Elopement

More so than any other segment of the population, older adults who reside in nursing homes or other institutional care facilities often are at risk of suffering “accidental” injuries.  The term “accident” is defined by the federal regulations as “any expected or unintentional incident, which may result in injury or illness to a resident.”  With respect to accident prevention, the federal regulations provide “the facility must ensure that the resident environment remains as free of accident hazards as possible; and each resident receives adequate supervision and assistance device to prevent accidents.”

The challenge in evaluating a nursing home case involving accidental injury or death involving a fall or other type of accident is to distinguish between those accidents that result from substandard care, negligence or neglect on the part of the facility and its staff, and those that could not have been anticipated or avoided. 

THE STAKES ARE HIGH

For an older adult in a care facility, a single fall and orthopedic injury is, more often is not, an event from which no recovery is possible.  Even if the resident does not suffer immediate death, he or she may well face irreversible decline in cognition, chronic pain and lose what is left of his or her independence. An older adult who was in the facility for rehabilitation, may lose the chance to improve and go home. With respect to “elopement” (that is, wandering out of the facility), recent articles indicate that 70% of incidents result in death. A resident who wanders out of the facility is at risk of a myriad of accidents, including falls, hyperthermia, drowning, motor vehicle accidents, etc.  In addition, residents who wander within a facility may be at risk of “internal elopement.”   This means leaving a safe area within the facility to wander into an unsafe area, such as a storage closet, kitchen, walk-in refrigerator or down a flight of stairs.  Statistically, 80% of elopements involve chronic wanderers. 

THE STANDARD OF CARE

Before it can assert that an accident was “unavoidable,” a facility must show that it took reasonable steps to identify the risk and to implement an appropriate plan to mitigate it. As the risks change or interventions fail, the facility must adjust its approach to meet the resident’s changing needs and try new interventions as approaches prove ineffectual.

IDENTIFY RISKS

It is elementary that a facility and its staff cannot take reasonable steps to prevent an accident, if it fails to identify the risk in the first place.  For this reason, accident prevention begins with timely and comprehensive resident assessment. Many factors contribute to accident risks: cognitive deficiencies, confusion, agitation, dementia, unsteady gait, anxiety, depression, malnutrition, prescription medications, pain, toileting needs and numerous environmental factors such as the layout, organization, lighting and security of the physical premises.  Properly assessing the resident for risk of falls or elopement involves a deliberative process to evaluate the risk in light of all significant risk factors. Because the regulations require an interdisciplinary approach to care plan and assessment, any reasonable assessment and plan must incorporate the collective knowledge of the multiple staff disciplines most knowledgeable about the resident.  The independent, subjective decision of an individual staff member is no substitute for this inclusive approach. 

When risk factors change, the resident should be reassessed and the plan changed to address the resident’s needs. Again, significant changes in the plan should be discussed with the resident’s representative and physician.

IMPLEMENT A PLAN

Identifying the risks of accident are only part of the equation. The facility must also devise reasonable interventions to reduce or eliminate those risks. For instance, if a resident is unsteady on her feet and lacks the cognitive functioning to remember to use her call button, an alarm might be required to alert staff if the resident attempts to self ambulate.  That way, staff can respond and assist the resident and prevent her from falling.  If that does not work, the staff may need to use the bed side rails or to provide close, line of sight, supervision.

For residents who wander and suffer from dementia, reasonable steps must be taken to prevent external or internal elopement. Such steps might include transferring the resident to a locked unit, where all doors are locked and the resident is provided a magnetized bracelet that will sound an alarm if the resident tries to leave the safe area.

Other interventions include a belt to keep a resident from getting up and falling out of a wheelchair; evaluating and changing prescription medications to reduce confusion or agitation; providing additional occupational and/or physical therapy to enhance the resident’s strength and ability to self ambulate; providing social counseling to help the resident address anxiety, depression and mental health issues; putting the resident on a regular toileting schedule; or addressing environmental factors such as keeping the area well lit and uncluttered.  What is not acceptable is to just give up and allow an avoidable accident to happen.

MEDICATION RISKS

Accidents are often related to the use of medication. Older adults are even more susceptible to adverse side effects of medications. Unfortunately, some facilities use medications excessively, in order to restrain or subdue a resident who is anxious or noncompliant. When the resident first receives a new medication, he or she may be at high risk for accidents because the medication adds to confusion and instability. Even if such medications are medically indicated, the facility fails in its duty of care, unless it closely monitors the resident for side effects and plans accordingly.

ADEQUACY OF STAFF

In investigating a case involving an accident, it is important to look at the timing of the incident. Did the incident occur on a weekend or holiday, at mealtime, during a shift change or at other times when staffing may be insufficient?  The standard requires that the nursing home provide “adequate” staffing to meet the needs of the residents.  If a resident requires close supervision, but there is insufficient staff to provide that level of care, the facility has violated this “adequacy” standard.

Another timing-related issue is whether the accident occurred within the first 72 hours after admission.  Newly-admitted residents are at heightened risk of accidents, because they may have anxiety and difficulty adjusting to the new setting. In addition, many facilities do not prepare formal care plans until the resident has been in the facility for several days.  Thus, the facility is without a plan at precisely the time when the resident may be at greatest risk. It is critical, therefore, that upon intake, the facility complete an assessment and interim plan to specify care needs until the formal care plan is adopted.

LOOK FOR PATTERNS

In accident cases, the facility often argues that it could not have anticipated the accident.  In order to counter this defense, look to see whether there were prior similar accidents involving this or other similarly-situated residents. If the resident suffered prior falls at the facility, any claim by the facility that it lacked notice of the resident’s fall risk will fall on deaf ears. If there is such a pattern, did the facility adopt new interventions?

CONCLUSION

One of the fundamental responsibilities of any nursing home is to keep the residents safe and secure and to take reasonable steps to prevent accidental injury or death. Not only is this good practice and common sense, but it is mandated by Federal and State law.  Unless the facility has properly identified the risks and taken reasonable steps to reduce or eliminate them, it has failed to meet its standard of care.

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Berman & Simmons is the leading personal injury and medical malpractice law firm in Maine. For more than 100 years, our trial attorneys have represented those who have been injured or harmed by the actions of others. These personal injury cases range from car and truck accidents to the most complex litigation involving defective products and malpractice by healthcare providers. We are known as the firm that will stand up and fight for injured Mainers in disputes against big corporations and powerful interests.