Nursing home falls: not your average slip-and-fall case.

Plaintiff lawyers may be inclined to treat a nursing home resident's fall as just another tort. But thorough case investigation may reveal evidence of long-term substandard care by the home.

There has been a great deal of national publicity about nursing home abuse and neglect in recent years. A 1997 Time magazine article reported that each year nearly 35,000 elderly nursing home residents die prematurely or in unnecessary pain because of neglect.(1) In a 1998 article, the magazine reported on the General Accounting Office's "damning study" that found that more than half the suspicious deaths studied in California nursing homes were probably due to neglectful circumstances, including malnutrition and dehydration.(2) Newspapers in several states have investigated this serious consumer issue,(3) as have television news shows.(4)

Heightened public awareness of nursing home conditions and resident care makes it all the more likely that trial lawyers will find themselves in client interviews with family members whose loved ones have suffered a serious fall while living in a nursing home. It is perhaps equally likely that many of these attorneys will evaluate the matter as a traditional slip-and-fall case rather than in its proper context as a fall resulting from long-term substandard care.

This article is designed to give a brief overview of how to analyze and handle a nursing home fall case, from participating the initial client meeting to proving liability. The question many personal injury lawyers handling one of these cases may ask is, "How is this case different from one arising from an elderly person's fall in, say, a grocery store?"

I'll use a brief example. In one case, a focus group was presented with evidence that treated a hip fracture in a 90-year-old nursing home resident as an injury-only case. The group returned an award of $45,000. When the case was tried, however, the evidence focused on neglect, safety regulation violations, breach of promise, and the nursing home's general refusal to accept responsibility for this resident's care. The evidence showed the home habitually violated doctors' safety orders and its own care plan. Not surprisingly, the jury came back with a $350,000 award.(5)

Quite simply, a nursing home is not like a grocery store. People live 24 hours a day in homes, where administrators have agreed to provide residents with adequate care and assured them that they have certain rights. Residents and their families expect the home to meet its obligation to comply with state health department regulations and the Omnibus Budget Reconciliation Act of 1987 (OBRA), which sets out the minimum standard of care.(6)

Often, a fall that occurs in a nursing home is not an unavoidable, isolated incident, as the defense may argue. Careful review of the home's policies and procedures, its staffing and care plans, and its history of documented complaints and health department surveys, as well as a thorough investigation of the fall, may reveal a case of long-term substandard care that resulted in a debilitating injury to the resident.

Attorneys handling these cases must become familiar with the laws governing nursing homes. Because most homes receive Medicare or Medicaid funding, they must comply with OBRA. A relatively quick way to learn about this statute and its regulations is to obtain a copy of the Health Care Financing Administration's state operation manual, which includes interpretive guidelines. This booklet details the regulations and is available from the National Citizens' Coalition for Nursing Home Reform, ATLA's Nursing Home Litigation Group, and other sources.(7)

Homes are also subject to inspections by state health officials who visit each facility every year to review its compliance with OBRA and applicable state laws. An "annual survey" is published after each visit, and a "complaint survey" is published following a health department's investigation of individual complaints filed against a home. These surveys are available to the public.

Plaintiff attorneys must also educate themselves on nursing home operations. Charts, staffing plans, fall prevention programs, and individual care plans are all part of the daily business of running a home. How records are kept and procedures are followed can make a dramatic difference in a resident's quality of care.

Case evaluation

When a client comes in with a complaint about an elderly loved one's fall, the first step is to review the resident's chart, which should detail the care that was provided. The easiest way to get the chart is to send the resident's relative or other representative to the facility to ask for it. Under federal regulations, a copy of the chart must be provided within two working days of the request.(8) It is advisable to obtain the chart for the resident's entire stay, not just for the days or weeks preceding the fall.

If the resident's representative has complained to the state health department, have him or her obtain the complaint survey. If no complaint has been made, now may be the time to do so. A health department surveyor, with direct access to the home and its records and employees, will save the lawyer time and the resident money if the case proceeds to discovery.

The health department also keeps several years of past surveys, which include the nursing home's response--its plan of correction--to state surveyor citations. A review of these surveys may show a pattern of violations and failure to address them.

When evaluating any new case, lawyers must be mindful of the potential for recovery. Does the advanced age and poor health of the resident limit that potential? It may if the case is framed as a typical slip and fall.

The nursing home, however, has agreed to provide care to the resident, who has entrusted his or her well-being to the people making that promise. In some cases, homes have failed to properly assess fall prevention issues for its elderly residents. In others, they have documented their awareness of a resident's unsteady gait from the beginning of the resident's stay but failed to take reasonable steps to avoid the fall that resulted in a hip fracture.

These failures can give rise to punitive damages since the home's conduct would be considered gross negligence or conduct in heedless disregard of the consequences to the resident.

Filing suit

Negligence and breach of contract are two frequently alleged counts in a fall case, but others may apply as well.

Negligence might be based on the home's failure to staff the facility adequately; failure to properly assess the resident and implement a care plan to prevent foreseeable falls; or failure to use safety devices, such as bed alarms to notify staff that a resident is trying to get up without help. Other bases for negligence may include the home's failure to implement and follow a toileting program so that a resident does not use the restroom without assistance or failure to notify the resident's doctor or family of a fall, how it happened, and the extent of injuries suffered.

A breach of contract theory is based on the nursing home's agreement to provide safe and reasonable care. This contract provides for payment of nursing services and room and board, and it usually explains that a resident has rights and remedies, including a safe environment. Homes also typically make oral promises of good care to the resident and family members. These contracts bring legal force to a nursing home fall case that is not available in a typical slip-and-fall case.

Breach of fiduciary duty is another legal theory that may be considered by the attorney. For example, the Indiana Supreme Court used strong language in holding in Stropes v. Heritage House that a home is subject to the highest duty of care for its dependent residents.(9)

Res ipsa loquitur is another legal theory that may be considered, since the resident was in the home's exclusive care and control. Under this theory, the burden is on the home to explain how the resident was injured if, for example, he or she was in a wheelchair or lift that presents no threat of injury when used properly.

Plaintiff lawyers should also find out whether adult protection statutes exist in the state where the home is located, as they may give rise to additional legal theories or remedies. Other theories, beyond the scope of this article, may also be pursued.(10)

Discovery

Because nursing homes are required to keep many records and manuals, the paperwork discovery can be extensive. Perhaps the most important document is the care plan--the road map the home uses in providing individualized resident care.(11)

This plan is based, in part, on assessments made when the resident enters the home, and it is updated periodically as health and custodial needs change. Among other things, this initial assessment process--the results of which are known as the minimum data set(12)--will help the home determine the resident's risk for falls. If the resident is at risk, the care plan must include methods for preventing falls.(13)

The lawyer should retain a nursing home expert to determine whether the steps set out in the care plan were adequate to protect the resident.(14) For example, a resident might be unsteady on his or her feet and require assistance when getting up and walking. If this is not spelled out in the care plan, it would be inadequate.

The care plan is not static. When it no longer addresses a resident's needs, a reevaluation must be done, new nursing interventions must be developed, and those changes must be reflected in the plan.(15)

A nursing home expert can analyze the resident's chart and compare it with the care plan to see if the proper reevaluations have occurred. This expert can determine if new and reasonable nursing interventions were developed and implemented.

For example, if the resident reports to the staff that his or her knee gave out and the staff observes that the resident almost fell, the plan should be changed so the staff knows how to deal with this new situation. If the resident is able to follow directions, the revised plan might provide that the resident must use a call button to summon help before getting up and walking.

Because a resident's fall is usually foreseeable, good care planners should try to determine what may cause an at-risk resident to get up on his or her own. For example, many falls occur when a resident tries to make it to the bathroom. In that case, a proper care plan should provide for a program called "toileting in advance of need." Under this plan, the resident is taken to the bathroom every two hours regardless of need. This simple intervention addresses the resident's inclination to get up for a bathroom visit alone and can, therefore, prevent a foreseeable fall.

Many falls also occur when residents try to get out of bed. A possible intervention is to give a resident a lower bed to prevent a damaging fall that might occur from the height of a traditional hospital bed. Also, a mattress might be placed beside the bed at night to prevent serious injury to a resident who tries to get out of bed without assistance. A bed alarm, which sounds at the nurse's station if the resident tries to leave the bed, might also prevent falls.

A lawyer may draw several conclusions from a situation in which there was a clear need for a fall prevention plan or nursing interventions but no action was taken: The home was not paying attention to the needs of the resident; the staff was not properly trained to deal with the resident's needs; there was not enough staff to properly assess the resident and implement the care plan; or the home did not have the proper equipment to provide for the safety of the resident.

Some care plans provide for using restraints on residents, purportedly for their safety. Under the OBRA regulations, restraints are a last-resort intervention, implemented only when there is no other way to protect a resident from harm.(16) Contrary to what laypeople might think, restraints actually contribute to more fall injuries than they prevent.(17) A restrained resident will, by instinct, struggle to be free. Also, studies have shown that restraints weaken residents, causing them to sustain a more serious injury than they would have if they had not been restrained.(18)

These arguments can be made when a resident has been injured or, in some cases, killed by restraints that were supposed to be a safety measure. Through testimony from a nursing home expert, plaintiff lawyers will likely be able to show that less drastic interventions than restraints were available and should have been used.

Other documents attorneys should obtain in discovery include:

Resident's chart and business file. Charts provide a wealth of information about a resident's care and health status. The lawyer should be sure to get a color copy because irregularities are easier to see than on a black-and-white photocopy. Also, different work shifts usually use different colored ink, permitting verification of when chart entries were made. A resident's business file also should include a copy of the signed contract, the resident's "bill of rights," and payments made.

Employee records. These include names, addresses, and social security numbers of all workers at the time of the incident and their current employment status. (The court can order the protective release of social security numbers.) Plaintiff lawyers should not ignore the opportunity to contact employees who no longer work at the home. They can enlighten jurors about understaffing and poor care and, if they made complaints to the administrator or nursing director, they can testify about whether their concerns were addressed.

Payroll records, time cards, and personnel files are helpful in proving whether a particular worker was present during the resident's fall, if he or she received any inservice training as a result of the fall, or whether the worker had a history of problems that may have led to termination. For example, the personnel file of a certified nursing assistant responsible for the hands-on care of a resident might reveal complaints made for failing to respond when a resident used his or her call-button or for being too rough with residents.

A note about obtaining nursing and staff time cards and sign-in sheets: The home will likely try to provide only schedules. Remember, however, that while 5 aides may be scheduled to take care of 50 residents one day, only 2 workers may have shown up. This documented understaffing can help show jurors why proper care procedures were not followed. Some homes have been known to list former employees or employees who are on vacation on their schedules so that it looks as though staffing is adequate.

Staffing plans. These documents, prepared by the director of nursing, may reveal systemic staffing problems. Is the number of workers scheduled for each shift the same as that called for in the staffing plan? If not, jurors who may be reluctant to blame an individual aide or nurse for inadequate care may see that the facility's administrators chronically failed to provide enough staff to meet residents' needs.

Nursing policy and procedure manual. Compare what the home says its nurses and aides should do regarding fall assessment and prevention with what was done.

Financial cost reports. Homes must file these and other types of reports with state and federal governments to qualify for Medicaid funding. The cost reports are available from the state agency that handles them, typically referred to as the Medicaid office of policy and planning. The reports contain the home's gross revenues; expenditures for resident care and administrator salaries; and, where applicable, the management fees charged by the nursing home chain. In a suit seeking punitive damages, these data can be valuable.

State health departments keep other information on each home, including the name of the person or entity that owns it and perhaps other homes in the state.

All these documents, in addition to the home's incident report of the fall, state health department annual and complaint surveys, and marketing and advertising brochures promoting good resident care, will help build a foundation for proving nursing home liability.

Combating defenses

The most typical defense in these cases is that the home provided care but failed to document it in the patient's chart. However, OBRA requires that the chart be accurate and complete.(19) Good nursing requires the charting of the actual care that was provided to the resident. Most nurses will admit on cross-examination that if the care is not recorded in the chart, it was not provided.

Another defense, and one easily refuted at trial, is that the doctor failed to advise the home of a resident's needed care. OBRA regulations, however, place the responsibility for resident care squarely on the home.(20) The law recognizes the reality that most doctors do not visit the resident but once every 30 or 60 days and that the staff is the doctor's eyes and ears in terms of the resident's needs and safety.

Doctors often sign off on a care plan, restraints, bed rails, and other needs of the resident based on nursing staff recommendations. Usually, the nurses write out the doctor's orders or the home's pharmacy types them out, and the doctor merely signs them when he or she comes to the nursing home every 30 to 60 days.(21)

Another defense is to blame the resident for the fall. If the resident fell while trying to get to the bathroom, the home may say that he or she failed to use the call light and wait for assistance. An investigation may reveal that the home was so understaffed that call lights routinely went unanswered. Or the home may argue that the staff repeatedly warned the resident about getting up without help.

OBRA regulations require that residents be provided with proper assistive devices to protect them from harm.(22) And issuing a warning to an elderly person with Alzheimer's disease, dementia, or short-term memory problems is not an adequate nursing or safety strategy.

Plaintiff lawyers who understand these cases are more than traditional slip-and-fall cases should not bow to the home's insistence on framing the case as a cut-and-dried injury case. The defendant's theme will be "accidents happen." It will try to confine questions of negligence to the date of the injury.

However, the foreseeability of a fall and violations of OBRA regulations and standards of care all require that a full picture be presented to jurors. This approach will help to undermine the contention that falls are inevitable and that the home cannot prevent each incident.

To counter the defenses, the plaintiff lawyer must point out that the home's duty is heightened by the reality that old people do fall and that the staff was charged with and accepted the obligation to ensure the safety of this resident. While a home perhaps cannot prevent every fall from occurring, it has the duty to take every reasonable action within its power to minimize falls and injuries.

Damages

Defendants will try to minimize the value of the elderly and frail person who has been injured or died in their care. By framing the case as one involving neglect and safety violations, the attorney can help jurors empathize with the dependent resident.

Research shows that the case focus is best placed on the home's provision of bad care. When the defendant is attacked first and bad care is proven, jurors are receptive to adequately compensating the resident or his or her estate.(23)

In closing argument, jurors should be reminded that their verdict is about safety. By returning a verdict for the resident, they are saying neglectful conduct is not acceptable. The case is about responsibility--the responsibility of the home for its acts.

Jurors will be saying that this elderly person did not deserve to be injured in this manner and that their verdict will fully compensate his or her family for this unnecessary injury, pain and suffering, and loss of enjoyment of life. She only had so much time left and deserved to be able to live that time without this injury.(24)

Nursing home fall cases can be complex, expensive, and challenging. By focusing on the bad care, lack of care, foreseeability of the fall and injury, and the reasonable means of preventing the fall, lawyers will not only help the resident and his or her family but they will help educate the public about the unnecessary heartache and pain that is generated in places that once were best known, as they should be, as rest homes.

Notes

(1.) Mark Thompson, Fatal Neglect, TIME, Oct. 27, 1997, at 34.

(2.) Mark Thompson, Shining a Light on Abuse, TIME, Aug. 3, 1998, at 42. For links to the General Accounting Office report and congressional hearings held July 27-28, 1998, see the Web site at http://www. nursinghomeabuse.com.

(3.) See, e.g., The Tarnished Years I, INDIANAPOLIS STAR (visited Mar. 24, 2000) http://www. starnews.com/news/special/nursing.html; The Tarnished Years II, INDIANAPOLIS STAR (visited Mar. 24, 2000) http://www.starnews.com/news/ special/nursing2.html; Horror of Neglect Alleged at Care Home, SACRAMENTO BEE, Aug. 9, 1998, at A1.

(4.) See, e.g., Vince Gonzales, Fighting Elder Abuse, CBS Evening News, (visited April 26, 2000) http://cbsnews.cbs.com/now/story/0,1597,166361-412,00.shtml; Lee Marshall, No Place Like Home, NBC television affiliate, Huntsville, Ala. (visited Mar. 24, 2000) http://www.msnbc.com/local/waff/ 32913.asp.

(5.) Lundy v. Glenburn Nursing Home, No. 28D01-9610-CP-332 (Ind., Greene County Super. Ct. Apr. 26, 1999).

(6.) 42 C.F.R. [sections] 483 (1999).

(7.) National Citizens' Coalition for Nursing Home Reform, 1424 16th St., N.W., Washington, DC 20036, [phone], fax [phone]. To join the ATLA Nursing Home Litigation Group, contact Briana Rivera at [phone].

(8.) 42 C.F.R. [sections] 483.10(b)(2)(ii).

(9.) 547 N.E.2d 244 (Ind. 1989).

(10.) See Sylvia Hsieh, New Theories for Nursing Home Cases, LAW. WKLY., Aug. 23, 1999.

(11.) 42 C.F.R. [sections] 483.20 (K).

(12.) Id. [sections] 483.20(b).

(13.) See Jules Olsman, Legal and Medical Aspects of Nursing Home Fall and Fracture Cases, in NURSING HOME LITIGATION (1999).

(14.) Experts should also include a nurse, who can analyze the care provided by the home and possible standard-of-care violations, and a gerontologist. The resident's own doctor probably will not be cooperative in the case, as most nursing home doctors have a close relationship with the home and its patients through referrals.

(15.) 42 C.F.R. [sections] 483.20 (K)(2)(iii).

(16.) Id. [sections] 483.13(a).

(17.) Steven H. Miles & Patrick Irvine, Deaths Caused by Physical Restraints, 32 GERONTOLOGIST 762 (1992).

(18.) L.K. Evans & N.E. Strumph, Tying Down the Elderly: A Review of the Literature on Physical Restraint, 37 J. AM. GERIATRICS SOC'Y 65 (1989); Mark Weyland, Physical Restraints in the Practice of Medicine, 152 ARCHIVES INTERNAL MED. 2203 (1992).

(19.) 42 C.F.R. [sections] 483.75(i)(i).

(20.) Id. [subsections] 483.25, 483.40(d).

(21.) Id. [sections] 483.40(c).

(22.) Id. [sections] 483.25(h)(2).

(23.) Elaine McArdle, Plaintiffs Should Always Start by Attacking the Defendant, LAW. WKLY., Oct. 18, 1999.

(24.) Credit for this winning argument is given to Jim McKenzie of Pensacola, Florida, who circulated this argument on ATLA's medical malpractice list serve.

George Clyde Gray is a partner with Gray, Robinson, Ryan & Fox in Indianapolis.