Are falls actionable under residents' rights statutes?

AN ELDERLY NURSING HOME RESIDENT FAILS FROM HER BED and is found injured on the floor of her room. The resident files a lawsuit, alleging that the home violated her "residents' rights." Does the fall constitute a violation of the resident's rights or should ordinary principles of negligence apply?

In response to certain discovered abuses in nursing homes and assisted living communities, many states have enacted resident protections known as "residents' bill of rights" statutes. These laws usually contain a laundry list of safeguards pertaining to residents' civil and religious beliefs, finances, privacy interests, and personal safety.

The scope and application of these provisions is often difficult to discern, due to vague and ambiguous wording such as a "resident's right to adequate and appropriate health care and services." Consequently, when even the most minor mishap occurs at a facility, an injured resident's attorney will often attempt to establish liability within such broadly worded language.

Nowhere is this more common than in the area of falls. Residents' rights laws usually do not contain any language suggesting that providers must insure against all falls by the elderly. To the contrary, most prohibit providers from using chemical or physical restraints that some argue would help prevent slips and falls. And in McDuff McCartney v. Columbia Heights Nursing Home, a Louisiana appeals court held that a nursing home has no duty to furnish a 24-hour nurse or attendant in order to prevent such occurrences. Instead, the statutes typically require that the facility's environment remain as free of accidents as possible and that each resident receive adequate supervision and assistance to prevent accidents.

Historically, sllp and fall actions have been governed by common law principles of negligence. But by framing a case as a residents' rights issue, attorneys can claim attorney's fees--relief that is usually not available under common law negligence. What's more, most such statutes provide attorney's fees to the plaintiff only; the facility only gets attorney's fees if it can show that the action was brought in bad faith. Some statutes also allow for punitive damages, which would not be available under simple negligence principles.

To argue effectively that such a claim should not be permitted, you must understand your statute's legislative history. For instance, Florida's residents' rights act arose out of a Dade County grand jury's report of deficiencies in care at some Miami nursing homes. According to a House subcommittee on aging, these deficiencies included rats in patients' beds and roaches in their food, as well as "inadequate, inattentive, or insensitive staff; disoriented patients deteriorating mentally and physically without treatment designed to retard or reverse that deterioration; loneliness and fear induced by unfamiliar, sterile, and even hostile surroundings; lack of respect for personal dignity of the residents; and the use of physical and chemical restraints."

While the legislature was rightly concerned with these outrageous conditions, it was not seeking to remedy problems that are beyond anyone's control. Hence, falls were nowhere to be found in its list of deficiencies requiring remedial action.

Courts have taken up the issue of whether falls should fit within their residents' bill of rights. For example, in Begandy v. Richardson, a New York trial court said they shouldn't. Although the resident who fell down the stairs in the Begandy case had allegedly been left unattended, the court held that the alleged wrong did not pertain to a specific personal right or benefit under the statute, which included "rights of privacy, private communications, civil and religious liberties, financial care, basic medical care, courteous treatment, [and] freedom from mental and physical abuse." The court also noted that the law was intended to create a private right of action where none had existed, and residents were already able to bring personal injury actions for slips and falls.

Given the detailed nature of residents' rights statutes, if a legislature had intended to include falls, it would have done so explicitly. To find otherwise would be reaching beyond the initial intent of federal and state nursing home legislation. While it is certainly a socially desirable goal to protect the interests of those who are too weak and infirm to protect themselves, judicial interpretations that arbitrarily and indiscriminately apply the principles embodied in residents' rights legislation to the not unusual circumstance of an elderly person's fall will inevitably lead to an inappropriate increase in the legal liability for providers--and expanded costs to long term care providers, their residents, and families.

Dan Shapiro is an attorney with the Miami law firm of Cole, White & Billbrough P.A., which represents nursing homes and assisted living facilities in Florida.