Fall Liability in
Long-Term Care Facilities by Roger S. Weinberg
Falls are extremely common among
older persons. It is estimated that 30% of non-institutionalized persons over the age of 65 fall every year, and this rate increases with age. Falls in long-term care settings are even higher. Various studies indicate that at least half of the residents in nursing homes and assisted living facilities fall at least once a year. Older persons that do fall often have multiple falls.1
Falls are the major cause
of accidental death for people over age 75.2
Although most falls do not result in
death, many falls can lead to sequelae im- pairing physical functioning and quality of life. Loss of function may be a physical anatomical loss and/or a psychological
1
Rubenstein LZ, Josephine KR (2002) The Epidemiology of Falls and syncope. Clinics in Geriatric Medicine 18, 141-158
2
National Center for Health Statistics (1988) see
http://www.NCIPC/wisqurs/ mortrate
loss caused by lack of confidence or fear of falling. Head, hip and spinal fractures are the most debilitating. Liability in nursing home and assisted
living cases follows the same general negligence or malpractice principles as other type personal injury cases. A duty or standard of care must be established. Then a breach of the duty or standard of care must occur which proximately caused the injury. In any case, damages resulting from the injury must be shown. The issue of damages in long-term care cases is beyond the limited scope of this article. As a result of the high risk of falls in
the elderly, especially in settings such as nursing homes and assisted living facilities, the facilities should develop policies, practices and procedures for fall risk assessment, care plans and interven- tions to prevent injuries. In addition to statutory requirements, when facilities advertise and market that they provide
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3
Omnibus Budget Reconciliation Act of 1997
4 420 C.F.R. 483.20 5 CMS’s RAI Version 2.0 Manual 22 Trial Reporter Summer 2007
a “safe nurturing environment”, they create a duty to address fall concerns. In nursing home settings, there are
statutory requirements under both federal and state law. Under federal law (OBRA),3
a Residential Assessment In-
strument (RAI) is required initially and periodically to assess residents entering a skilled nursing facility that receives payments from Medicare or Medicaid.4 The RAI process is based on the follow- ing steps:5
1.Assessment. Taking stock of all observations, information and knowledge about a resident; under- standing the resident’s limitations and strengths; finding out who the resident is
2.Decision-Making. Determining the severity, functional impact, and scope of a resident’s problems; understanding the causes of and relationships between a resident’s problems; discovering the “what’s” and “whys” of resident problems
3.Care Planning. Establishing a course of action that moves a resident toward a specific goal using individual resident strengths and interdisciplinary expertise; crafting the “how” of resident care
4. Implementation.Putting the course of action (specific interventions on the care plan) into motion by staff knowledgeable about the resident care goals and approaches; carry- ing out the “how” and “when” of resident care.
5. Evaluation. Critically reviewing (Continued on page 24)
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