Nursing-Home Falls and Understaffing: When a Fall Is Neglect, Not an Accident

Published November 12, 2019 · Injury Law Basics

The call usually comes from a nurse, late in the evening. "Your mother had a fall." She was found on the floor beside her bed, or in the bathroom, and she has been sent to the hospital. Sometimes it is a bruise. Too often it is a broken hip, a head injury, or the beginning of a decline that ends her life.

For the facility, "she fell" is often the end of the explanation. For the family, it should be the beginning of the questions. A fall in a nursing home is not automatically anyone's fault. But many falls happen because the facility did not do what it had already decided it needed to do for that resident, or did not have enough staff to do it.

Why falls are so often preventable

Falls are among the most common and most serious injuries suffered by nursing-home residents. Many residents have weak muscles, poor balance, dementia, low blood pressure, or medications that cause dizziness. Those risks are exactly why a nursing home exists: a resident who could safely walk to the bathroom alone at 2 a.m. would usually not be living there.

Because the risk is known, the law expects the facility to plan for it. Facilities that participate in Medicare and Medicaid must assess each resident and write a care plan, and a resident who is a fall risk should have specific interventions in that plan, such as:

• Help, or a standby aide, for every transfer from bed to chair or toilet
• Scheduled toileting rounds so the resident does not try to get up alone
• A low bed, floor mats, bed or chair alarms, and non-skid footwear
• Call light within reach, and prompt answers when it is used
• Review of medications after any change in balance or alertness
• Re-assessment and a revised plan after every fall

When a resident falls, the first question is whether the care plan called for something that did not happen. Was the resident supposed to have two-person assistance? Was the alarm turned off? Was the call light on for twenty minutes before she tried to get up on her own?

The staffing problem behind many falls

Care plans are carried out by people, mostly nurse aides. When a facility schedules too few aides for the number of residents, or relies on staff who do not know the residents, care plans become paperwork. Call lights go unanswered. Toileting rounds are skipped. Residents who need help to stand try to do it alone.

Understaffing is a business decision, and it is one of the most important things to investigate in a nursing-home fall case. The answer is in documents the facility controls: daily staffing sheets, time records, assignment sheets showing how many residents each aide was responsible for, and call-light logs where the system records them. Facilities also report staffing information to Medicare, and state and federal inspection reports often reveal staffing shortages and fall-prevention failures the facility was already cited for.

Ohio's residents' rights law

In addition to an ordinary negligence claim, Ohio gives nursing-home residents a list of specific legal rights in R.C. 3721.13. In the version in effect today, they include:

• The right to "a safe and clean living environment" (division (A)(1))
• The right to be free from physical, verbal, mental, and emotional abuse (division (A)(2))
• The right to adequate and appropriate medical treatment and nursing care (division (A)(3))
• The right to have all reasonable requests and inquiries responded to promptly (division (A)(4))
• The right to access the information in the resident's medical record (division (A)(8))

R.C. 3721.17 gives a resident whose rights are violated a civil cause of action against the facility or person responsible, and allows a family member to bring the claim on the resident's behalf when the resident cannot. Compensatory damages are available when the violation resulted from negligence and caused the injury, and punitive damages may be sought under Ohio's general punitive-damages statute when the facility's conduct was malicious. The residents' rights statute frames the case in terms the facility has already agreed to honor, which can be powerful with a jury.

What records to request

If your family member has fallen, ask for, and keep copies of, the following. Our office routinely obtains these as part of an investigation:

• The complete chart, including nursing notes, physician orders, medication records, and assessments
• The care plan in effect before the fall, and any revisions afterward
• Fall-risk assessments, and any prior falls and how the facility responded
• The incident report for the fall (facilities sometimes resist producing these, which is a reason to involve a lawyer early)
• Staffing records for the shift when the fall occurred
• State inspection (survey) reports for the facility, which are public, along with Medicare's Nursing Home Compare ratings
• Hospital records documenting the injury

Photographs of the room, the bed, and the injuries, and the names of staff members and other residents' family members who were present, also matter.

Arbitration clauses and other traps in the admission paperwork

Admission packets are thick, and they are often signed in a hurry during a crisis. Many contain an arbitration agreement, which, if enforceable, takes the case away from a jury and puts it before a private arbitrator. Ohio courts do not enforce every such clause; I wrote about a Dayton family that kept its right to a jury trial despite one. In addition, federal rules that took effect on September 16, 2019 prohibit nursing homes that participate in Medicare and Medicaid from requiring residents to sign an arbitration agreement as a condition of admission or continued care, and require that the agreement give the resident 30 calendar days to rescind it. If a family member is being admitted now, read carefully and know that you can say no.

Deadlines and damages rules are different

Ohio generally treats claims arising out of a nursing home's care of a resident as medical claims. That matters in two ways. First, the deadline is short: a medical claim generally must be filed within one year, although that period can be extended in some circumstances by sending a proper written notice. Second, Ohio's statute on medical claims, R.C. 2323.43, limits noneconomic damages such as pain and suffering in most cases, with higher limits for catastrophic injuries. Those limits do not apply to the family's wrongful-death claim when a fall leads to death. I explained how wrongful-death recoveries are divided among family members earlier this year.

What this means for you

A fall in a nursing home deserves an explanation that goes beyond "she fell." Ask what the care plan required, who was on duty, and how long the resident waited for help. Request the records in writing. And because medical-claim deadlines are short, do not wait for the facility's internal review to finish before getting advice. Our personal injury practice handles nursing-home neglect claims, and our wrongful death practice handles cases in which a fall leads to a loss.