MYERS & COMPANY
Skilled Nursing, Assisted Living and Home Health Care Falls
These cases can be tough. There are a couple of things that make them challenging:
Many falls are unwitnessed.
The person who falls frequently can’t remember/describe what caused the fall.
Some falls happen without negligence.
Not all falls are preventable.
In most situations physical restraints are not allowed.
Falls can happen in seconds.
People in these facilities usually had other things wrong with them before their falls.
The life expectancy of people in these facilities may have been pretty short before their falls.
But despite these challenges, they’re worth pursuing and can definitely be won at arbitration or trial.
The best way to pursue these claims is to focus on what the facility knew (or didn’t know) about the person’s fall risk. And what the facility did (or didn’t do) to prevent the fall.
There’s a lot of discussion about staffing turnover at these facilities. For good reason:
But I really think that staffing turnover, staffing levels, etc. need to complement and aren’t a substitute for a core liability theory.
Here’s an example where understaffing is complementary to the central theory that assistance provided was deficient:
While they can’t be used on their own to prove negligence, these “administrative” issues have an outsized effect on implicating the Vulnerable Adult Statute.
The Vulnerable Adult Statute is a big deal because it allows the injured person (or their family) to recover attorney fees and costs if they win. But doesn’t allow the facility to recover its fees or costs if it wins.
The Vulnerable Adult Statute applies when there’s a pattern of omissions or serious disregard of risk to a resident. Something like staffing omissions or failure to perform fall evaluations would probably implicate the Statute.
Not only does it provide a basis for recovering fees but there is also a good argument that damages under common law negligence and the Vulnerable Adult Statute for the same injury don’t constitute a double recovery.
These cases should be pursued where there’s a big injury. A debt is owed to the person who got hurt and their family. Pursuing these cases also makes it less likely that a similar injury happens to someone else.