Preventing Falls in Hospitals and Nursing Homes
By Douglas W. Bowerman, MD.
Cases involving a fall in a hospital or nursing home are the most common type of potential medical malpractice cases I am retained to review for plaintiff attorneys. Although fall cases should be straightforward, they incorporate complesx medical standards of care.
Complicating this matter further, is the fact that fall cases are not consistently judged by either strict liability or negligence standards. There is a clear difference between the strategy required to win a case tried using strict liability and one using negligence, and knowing what to expect before agreeing to pursue a case is invaluable.
The goals of this article are to provide a greater understanding of fall cases enabling you to (1) pursue cases having merit with more confidence, and (2) better explain to a potential client why you are electing to decline his or her fall case.
The Case for the Standard of Strict Liability
The challenge, therefore, is to find the ideal balance between preventing every fall and avoiding any harm.
I would wager if you were promised a reward of one million dollars to prevent a fall induced injury from occurring in one hospitalized patient for a day, you would be successful. Perhaps you might choose to hire a dozen people to surround the patient’s bed, or maybe you would cover the floor until knee deep with pillows. Whatever creative method you devised, you would predictably succeed. If you agree, one could then assert every fall is preventable given appropriate resources and effort.
Organizations including the Joint Commission (formerly known as the Joint Commission on Accreditation of Healthcare Organizations, or JCAHO), the National Quality Forum, and the Centers for Medicare and Medicaid Services (CMS) seem to agree. They have declared falls to belong to a category of events termed “sentinel events,” “serious reportable events,” and “never events,” respectively. These terms essentially have the same meaning: an error in medical care resulting in serious injury that can be reported and can be further prevented by implementing appropriate policies and procedures within the healthcare organization.
The most important ramification for a hospital is CMS’s decision to withhold its reimbursement of a hospital’s expenses for treating a patient’s injuries sustained from a fall. If the government considers a fall to be an event that should “never happen,” and will not pay for it when it does, this sends the message that preventing falls must be within a healthcare organization’s control and that falls only result from a failure in its responsibility to the patient.
Simply put: all falls are preventable. Strict liability states there is liability provided an injury occurred. Based on the above therefore, one can argue fall cases ought to be tried using the standard of strict liability.
The Case for the Negligence Standard
Hospitals have financial incentives to prevent falls.
- First, when a fall occurs, that hospital must now spend its money treating the patient’s injuries without getting paid.
- Second, now that hospital fall rates are publically available, hospitals risk losing future “customers” and their revenue to other hospitals thought to be safer.
- Third, the financial cost associated with defending against and potentially losing a lawsuit brought by a patient is significant. Because all hospitals are concerned about their financial health, they make concerted efforts toward anything financially beneficial. The occurrence of a million falls a year in US hospitals, despite the desire to have none, suggests all falls are not preventable.
Further, CMS’s reimbursement policy regarding falls does not necessarily equal negligence or alter the medical standard of care. According to the Institute of Medicine’s study “To Err is Human: Building a Safer Health System,” medical errors are inherent risks that are not avoidable through censure or punishment. Based on the above, once can argue fall cases ought to be tried using the standard of negligence.
Why aren’t fall cases more straightforward?
Consider the following scenario. An owner of a small business employs extra efforts to prevent a fall on his icy storefront steps with an extra application of salt, installing heavy-duty handrails, using more than adequate lighting, and by stationing employees on the steps to assist patrons. His vigilant efforts will decrease the likelihood of a fall without incurring any added risk of harm to the patron. In a hospital, however, similar extra efforts to prevent a fall may decrease the risk, but the potential to create harm to patients increases. Such harm includes loss of patient privacy, loss of patient autonomy, and the increased use of physical and pharmacological restraints. Surprisingly, use of restraints has been found to increase the risk of injury should a fall occur.
The challenge, therefore, is to find the ideal balance between preventing every fall and avoiding any harm. This balance cannot be determined by following an algorithm, by using metrics, or by employing a formula, but must instead involve professional judgment on the part of the hospital and staff on a case-by-case basis. It becomes difficult, therefore, to universally apply strict liability or negligence when professional judgment is brought into the courtroom, thus eliminating the potential for a straightforward case.
The Medical Standard of Care
The Agency for Healthcare Research and Quality (AHRQ) is a division of the US Department of Health and Human Services responsible for sponsoring and conducting research that provides evidence-based information and clinical practice guidelines to assist healthcare organizations and individuals to improve quality of care. In collaboration with the Institute for Clinical Systems Improvement, the resulting standard of care regarding the prevention of falls in the hospital and nursing home is made available to the public through the National Guideline Clearinghouse. The American Geriatrics Society, the British Geriatrics Society, and the American Academy of Orthopedic Surgeons have also collectively developed a guideline for the prevention of falls. These medical standards of care involve two tasks:
1. Perform a fall risk assessment.
The Morse Fall Scale and the Hendrich II Fall Risk Model. These tools query about previous falls.
The standard advises all patients admitted to hospitals and nursing homes be assessed for their risk of falling, and classified as either low risk or high risk. This classification enables hospital and nursing home staff to concentrate their efforts on patients deemed high risk. There are many tools used to assist hospitals in this process. Two common tools are the Morse Fall Scale and the Hendrich II Fall Risk Model. These tools query about previous falls and whether or not the patient is incontinent, has cognitive impairment, or is taking medications that may affect the sense of balance, among other factors. If after reviewing a potential client’s hospital record, you find a fall risk assessment was not completed, there was a deviation from the standard of care.
A review of the research concluded the screening tools’ ability to predict a patient’s risk of falling were comparable to a nurse’s clinical judgment in predicting a patient’s fall risk without using any tools. Since failing to assess a patient’s fall risk with a standard tool does not seem to result in an inaccurate assessment and subsequent assignment to a fall risk category, then the resulting efforts provided to that patient will be the same, and thus not impact the patient’s chance of sustaining a fall injury.
Understand that a hospital or nursing home failing to use a risk assessment tool, failing to use clinical judgment regarding a patient’s risk of falls, assigning a patient to the incorrect fall risk category, and failing to document the assessment are all deviations from the standard of care. These deviations, however, cannot actually increase a patient’s risk of falling, nor can they cause a person to fall. In summary, finding a deviation from the standard of care regarding the assessment of fall risk does not add merit to your case since causation cannot be established between a deviation from this standard of care and the actual injury.
2. Employ appropriate fall prevention strategies.
The standard of care for preventing falls, regardless of a patient’s fall risk, includes the use of the Universal Fall Precautions. Some examples of these recommendations include: familiarizing the patient with the new hospital or nursing home environment, ample lighting, provision of nonslip footwear, and ensuring the patient knows how to use the nurse call bell. Additional interventions such as the use of bed rails, hip protectors, sitters to watch patients, bed alarms, and restraints have traditionally been used as interventions to prevent falls. It is not intended that all such interventions be applied to the high-risk patient.
Typically, a patient has a specific condition increasing the risk of falling which could be helped by one or two interventions. If after reviewing a potential client’s hospital record, you determine that he or she was a high fall risk but did not have appropriate interventions to prevent falling, there was a deviation from the standard of care.
Does research show these interventions to be effective? Surprisingly, two studies of fall prevention strategies in hospitals and nursing homes found the evidence to be inconclusive. Further, there is no evidence to support the use of bedside rails to reduce falls. Research shows a slight increased risk of falls, a reduction in walking independence, and an increase in pressure ulcers and contractures among those who are physically restrained. It is important to understand the implications of the studies regarding medical expert witness testimony. The results of these studies do not permit an expert to testify that interventions are shown to be effective in preventing falls. Consequently, the expert cannot universally testify that a fall probably would have been prevented had interventions been provided to a high-risk patient who fell. The expert witness can testify, however, that an individual patient’s circumstances may have been affected enough by a particular intervention that a fall probably would have been prevented had intervention been provided to that patient. Again, this makes it necessary to look at each case individually.
Consider, for example, the standard intervention of nonslip footwear. If I reviewed a case of a patient who fell and was not provided nonslip footwear, I would conclude the standard of care was not met. Without more information about this particular patient I would also conclude, based on the evidence in the medical literature, that if that patient had been wearing nonslip footwear, he probably still would have fallen and suffered the same outcome. Suppose, however, this patient had medicated cream applied to the bottoms of his feet each evening for treatment of a skin condition. Throughout his stay in the hospital he had been provided nonslip footwear. As was his norm, he would awaken once each night, walk to the bathroom, and safely return to his bed. On one particular night, however, the hospital did not provide him with nonslip footwear. When he arose that night, he slipped on the tile floor and fell, fracturing his hip. In this case, I would conclude more likely than not,
the fall would have been prevented had he been provided nonslip footwear. I would assert causation could be established.
I hope, that despite the lack of consistency in how these cases are judged and despite the limitations imposed on fall cases by results of medical research, you can apply these concepts to all of your fall cases, and appreciate how the individual details of each case will determine whether or not your case has merit and is worth pursuing.
This article is reprinted from The Trial Lawyer magazine, published by The Trial National Lawyers.