Falls among the elderly are a major problem within healthcare facilities, and this severe problem requires attention. Some proposed technological solutions include optical sensors or cameras linked to artificial intelligence. These new systems provide the ability to have a video record of the actual fall.
The question arises: is it better to have or not have a video record? And does this increase or decrease liability for the facility?
When considering liability exposure for a facility if a patient or resident falls, is having a video record a good thing? Falls are both widespread and a cause for medical concern. But considering how common falls are, when and how does a nursing home become liable?
The answer lies with the standard of care the nursing home exercises regarding the fall victim. While nursing homes are not responsible for falls 100% of the time, there is a distinction between innocent accidents and falls that result from inadequate care and supervision.
The moment a nursing home has a resident sign an admission agreement, that contract creates a formal relationship in which the nursing home assumes a duty of care toward the resident, similar to the duty of care doctors have toward their patients. Federal laws like the Federal Nursing Home Reform Act (FNHRA) mandate uniform care standards, which are further supported by additional state laws for nursing homes.
For example, the FNHRA provides that nursing home residents have “the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat the resident’s medical symptoms.” Nursing homes that fail to live up to these standards may be subject to civil penalties imposed by government agencies.
In situations where nursing homes fail to meet the basic, minimum care standards provided by law, negligence often proves a key factor. In plain terms, the legal concept of negligence means that an individual failed to avoid or correct a hazardous situation, which he or she should have anticipated or known about, resulting in harm to another person.
Nursing homes should assess residents for fall risks and pay close attention to monitoring and physically supporting fall-risk patients. If a resident becomes injured because staff failed to take basic precautionary measures when they were aware of the risk of falling, the staff who permitted the preventable fall to occur could potentially be held liable for personal injuries or wrongful death. Falls may be a natural part of the aging process, but that does not give nursing homes a “free pass” to ignore the risk of falling.
Sometimes, the issue is not the quality of care provided by the staff members — it is the quality of the medical equipment the home is using. If a resident is injured because of a malfunctioning or defective product, such as a wheelchair or walker, the plaintiff could potentially file a product liability claim.
When a resident falls in a nursing home, there are many factors and conditions that need to be taken into consideration by the experienced nursing home attorney. For instance, what protocols did the facility have in place to guard against falls? What were the staffing requirements at the facility to monitor at-risk patients? Does the medical chart of the resident who fell have a special notation in their chart to watch for falling?
There are many causes of falling that a nursing home attorney may find. Some of these causes include the following:
- Failure to monitor patients.
- Failure to use patient protective devices.
- Failure to accurately assess a patient’s risk of falling.
- Bed rail malfunction.
- Failure to supervise at-risk patients walking in the facility.
- Improper training of staff.
- Medication errors or administrations that are incorrect or not given on time, causing patients to fall.
- Wet or otherwise hazardous floors.
- Improper positioning of the resident on a table, chair or floor.
- Damaged or defective walking aids such as walkers, canes, or other devices; and
- Improper transfer methods by staff.
Owners are legally responsible for these falls, and their insurance companies are financially responsible for them if a legal duty applied and the owner knew, or should have known, about the fall hazard.
Legally, nursing home residents are invitees. They have permission to be at the facility and their presence financially benefits the owner. As a result, nursing home owners have a duty of reasonable care. Initially, they must ensure that the property is safe. Then, they must conduct periodic safety inspections.
Given the popularity of surveillance video and its power in litigation, it is vital for both plaintiffs and defendants to comprehend the constraints and not reduce it to misinterpretation rather than enlightenment of the episode. This is not to knock the effectiveness of surveillance video in court. It can be a most important piece of evidence utilized by either side to prove their case. It certainly should not be thought of as a waste of time in either case and what the jury believes and decides may eventually rely upon the video surveillance shown in court as well.
Insurance companies may use video surveillance at various stages in the proceedings. They may use video surveillance in their assessment of a claim. When there are two different stories about how an accident occurred, objective video evidence can be the deciding factor. Claims adjusters may be able to review video footage that was made at the time of the accident to learn about how an accident really happened.
Considering exposure to liability for a nursing home operator, it seems that if one is running a good operation and doing the right thing, having a video record would be an advantage if a resident were to fall and a liability claim was filed.
This is consistent with what has been best practice for liability protection, which is document, document, document. As a decisive point for mounting a good defense, “one picture is worth a thousand words.”
Guy Fragala Ph.D., PE, CSP, CSPHP is recognized as one of the foremost thought leaders today for the integration of safety technologies into the process of healthcare delivery. He has many years of experience as a healthcare professional and faculty member working in major academic medical institutions and has actively assisted some of the largest providers of medical equipment in the world with effectively bringing their technology solutions to market and establishing these solutions as industry standards. He is considered the founder of the Safe Patient Handling and Mobility movement in the United States.
The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.
