Nursing homes may be held liable for injuries resulting from avoidable accidents. An avoidable accident is an incident that is the direct result of the facility (a) not assessing the hazard (b) not eliminating the hazard or implementing interventions to reduce the danger or (c) not monitoring the effectiveness of the interventions. This week on the podcast, we discuss the application of interventions for residents, hazards, and avoidable accidents in nursing homes.
Schenk: Before we get into it, please like and subscribe wherever you get your podcast from. That is the only call to action that I have in this episode. You can go over to our YouTube channel. Like and subscribe. Leave a comment there. But mostly like and subscribe. It does in fact help us out. It helps increase awareness and potentially could help someone that really needs the information in this program for their loved one in a nursing home. With that being said, let’s get into it.
So the idea here is understanding the concept of an accident in a nursing home. At least in the plaintiff’s bar, meaning the attorneys that represent people who have been injured in whatever realm, whatever walk of life, whether it’s in a motor vehicle, walking around your grocery store or in a nursing home, the idea is that we want to get away from using the word “accident” because the word “accident” to many people, the layman’s concept to the idea of the word “accident” is that it’s no one’s fault. It was an accident – there is no culpability, when in fact in many, many circumstances, someone is at fault. So when we say the word “accident” in that setting, in the plaintiff’s injury, personal injury world, we could be subliminally signaling to a jury, to the people out there that no one is at fault, no one is to blame, things happen. That’s the first thing I want to say.
So the use of the word “accident” is not an accident – just kidding. The use of the word “accident” in this program as it pertains to this subject is actually coming to you not from me – I’m just a vessel. It is coming from the federal regulations. So I just want you to be aware that that’s something on my mind, the term itself, I believe we should transition away from at least in these types of contexts, because to the average person, it may in fact mean no one is at fault. As we’ll talk about here in a second, that’s why we have the modifiers to accident as avoidable and unavoidable, right?
So anyways, federal regulations refer to different types of incidents as accidents. That’s what we’re getting this language from. So an accident under federal regulations, the federal definition of an accident in a nursing home is an unexpected or unintentional incident, which results or may result in injury or illness to a resident. Accident does not include other types of harm, like adverse outcomes that are a direct consequence of treatment or care that is provided in accordance with the professional standards of practice. So for example, drugs side effects or reactions to different drugs. That’s an example, an unexpected or unintentional incident.
Now what does it mean to say that an accident is avoidable or unavoidable? Again, we go to the federal regulations. An avoidable accident means that an accident occurred because the facility failed to identify hazards and/or assess individual resident’s risk of an accident, evaluate and analyze those hazards and risks and eliminate them if applicable or implement measures to reduce their likelihood. And three, implement interventions including adequate supervision, assistive devices or the like that are consistent with the resident’s needs, their care plan or the current professional standards of practice to reduce that risk. And then finally monitor the effectiveness of those interventions. That is an avoidable accident.
In short, just because something happens, just because there is an incident that is unexpected doesn’t mean that the nursing home is at fault or not at fault. We have to identify the preceding events, what happened before that. That is when we can provide the moniker of avoidable or unavoidable accident.
So an avoidable accident, one in which the nursing home is liable because it was avoidable – did I say that right? I think I might have misspoke the first time. The avoidable accident, the one in which could have been avoided, these are the categories of accidents that the nursing home could be liable for. Avoidable accidents – this is where the nursing home a) did not assess the resident’s risk to that hazard, b) did not provide interventions that either eliminated or reduced the likelihood of that hazard, and then c) updated that care plan with interventions to reduce or eliminate that hazard. If the nursing home fails to do any one of those three, that accident was avoidable.
So essentially you have avoidable and unavoidable. Any accident is avoidable – I’m sorry – any accident is unavoidable if the nursing home does all of those preceding things, if they knock out all those obligations – assess the risk specific to that resident, implement interventions to reduce or eliminate that risk and update and revise that care plan with the interventions. If they do all those things and the incident still occurs, then that is an unavoidable accident. That means that the nursing home is likelihood not going to be liable for it because they did everything that they could have done.
So again, just because something happens at a nursing home, just because someone is injured, just because something unintentional or unexpected occurs, just because there’s an accident doesn’t mean that the nursing home is liable for it.
There’s a concept in the law called strict liability, meaning that no matter what, if it happened, someone’s at fault for it. So some broad examples of that are statutory rape would be an example. There are essentially no defenses to statutory rape in most jurisdictions. That is what called a strict liability crime. Or selling minor alcohol – there’s typically no defenses there. It’s a strict liability issue.
Injuries, abuse and neglect at nursing homes is not a strict liability. It must fall into the category of avoidable in order for the nursing home typically to be liable for that injury.
So we have the definition of “avoidable.” We have the definition of “unavoidable.” All kinds of injuries occur as a result of avoidable accidents. The primary injuries result from falls or from wandering and elopement. So for example, if the resident leaves the facility and ends up hurting themselves outside of the facility, these in my experience, in my anecdotal research are the two primary results or primary avoidable accidents, injuries arising from avoidable accidents.
So we’ll take falls as an example. We’ve talked about falls in several previous episodes, but from the perspective of avoidable versus unavoidable with falls, the first thing that the nursing home needs to do is assess the resident’s specific risk of fall. And so the nursing home should go through, do an assessment head to toe, taking into account medications, age, vision, cognitive capacity. There are a lot of factors that would go into that type of assessment and then calculating those numbers, they would come up with the level of risk that that individual has to fall.
So once you have an assessment that’s person-centered, that’s based on resident, then you come up with the care plan based on what you find out through the assessment, and you put in place interventions to that care plan. So by way of example, let’s say that you’ve assessed the resident as a high fall risk in part because maybe they are continent, meaning they can get up and they want to go use the bathroom, but it’s dangerous for them to do so. Then an intervention in that situation would be that you would have a regular rounding schedule or a toileting program, or you would monitor the typical times in which that resident would need to use the bathroom, and you make sure you’re there for that resident to help them toilet. That’s one intervention.
Another intervention might be providing assistive devices, like maybe in some rare instances, siderails might be appropriate, although it’s often not. That’s another example. So interventions that are going to eliminate the risk or severely reduce them – that’s the second component to whether or not a fall would be avoidable or unavoidable.
The third thing would be revising the care plan where appropriate, so in other words, monitoring whether or not the interventions based on that assessment are actually working. So if you have a resident who interventions might include cueing to remain in bed and be asleep, if the resident continues to get up at night and walk around, it’s possible that you need to revise that care plan to say they need a sitter, or you might want to say, “Increase the rounding schedule to every 30 minutes or every 25 minutes,” or maybe having pressure alarms so when the resident leaves the bed at night, the nursing station is alerted to that and they can respond immediately. So revising the care plan with interventions that you might not have put in place in the beginning but you realize now that you need.
So if the nursing home does all three of those things and the resident still falls, then there is a strong argument that that accident was unavoidable, it was going to happen no matter what they did and they’re potentially not liable for it. However, if they fail in any one of those three things, any one of those three things, then there is a strong argument that that nursing home is liable because it is avoidable under the current definitions in the federal regulations – avoidable versus unavoidable accidents.
So can you sue a nursing home for an avoidable accident? The answer is absolutely. Many law firms across the country sue nursing homes every day for injuries resulting from avoidable accidents. The issue becomes a lot of times whether or not all three of those things were done by the nursing home. Nursing homes have a way of arguing, “Well we did the assessment on this day. The assessment was great. There’s no more interventions that we could have done,” this type of thing, but it just takes a matter of going through all the medical records, the testimony from employees and the like. “Did you do an accurate assessment? Did you do it on time? Was the right personnel doing the assessment? Did you check all those boxes? Did you check all the boxes of the interventions? Are these interventions actually meeting the standards of care for the particular risk that that resident has for that particular type of hazard or accident?” Then you check off those boxes. Then you check off the boxes of, “Did you monitor that care plan for its effectiveness?” Then you check off that box and you’ll often see that those boxes are not checked off. They’re not checked off. But no two cases are the same and no two accidents are necessarily the same.
But we find in our experience that if a resident experiences an accident, then there are either precursors to that, like it has happened before, or there are strong indications that it should have been caught, that it is in fact avoidable. So yes, you can sue a nursing home for that, but again, I would point you to other episodes about nursing home lawsuits that just because something is an avoidable accident, does it actually mean it has caused whatever the injury is? So you still have to – you’ve got one component of the lawsuit, but you need the other components, which are causation and damages, meaning did the avoidable accident actually cause whatever injury you are alleging? And again, we go into that in other episodes. I don’t want to bother you with that here. I just wanted to make sure that we’re all on the same page with regard to what an accident is, what it means to be avoidable, what it means to be unavoidable.
So one last thing before I leave here – do not take the nursing home’s argument that your loved one is old, sick and dying and there’s nothing that can be done. That is not a fair argument. That is not allowed under the federal regulations. Just because someone has dementia, just because someone is confined to a wheelchair, just because someone is blind, just because someone is incontinent doesn’t mean that you can just wring your hands and say, “Sorry, you’re going to die and there’s nothing we can do about it.” That’s why the federal regulations exist. You take each resident as they are with their medical diagnosis, with their prognosis, with their clinical conditions. You have to take them as they are.
And the assessment and the care plan and the monitoring of the care plan must be individualized – must be individualized so that they can’t just say, “Well your loved one is on a lot of medications and they’re going to get up and they’re going to fall because of the medications and there’s nothing we can do about it. There most certainly is. You assess that resident as being a high fall risk because of those medications and then the interventions should compensate for those medications or they should compensate for cognitive impairment or compensate for the inability to stabilize oneself when that resident is walking. You take the resident as they are and you structure the assessment, you structure the care plan, you structure the monitoring based around those.
So do not take, “We can’t care for your resident, your loved one, and no one else can,” for an answer. Ask them, “What have you done to reduce the risk associated” with whatever their excuse is. “What are the interventions that you’ve put in place, that you’ve monitored to make sure that they are effective based on whatever excuse you just gave me?” Those are important questions that you should have for that nursing home when they tell you that your loved one is old, sick and dying, and that’s the reason why the accident occurred or that’s what they’re saying is they can’t do anything about it. Absolutely not.
Only until an accurate assessment, an effective care plan and an effective approach at monitoring that care plan has been put into place can they even say anything like that. So you need to make sure that they defend themselves when they say these things. And that I guess is the Jerry Springer thought of the week or thought of the day.
That is going to conclude this particular episode of the Nursing Home Abuse Podcast. Hopefully you’re enjoying the content of the episodes. If you are, please like and subscribe wherever you get your podcast from. We are all over the place now. We’re on Spotify, Apple Podcasts, iHeart Radio, Pod Puppies, wherever you get your podcast from. We are also on YouTube, so mosey on over to the YouTube channel, like and subscribe there. If you have any suggestions for content, let us know. New episodes every other week on Monday. And with that, we’ll see you next time.