Pitfalls in Nursing Home Slip and Fall Injury Cases
May 21st, 2019
As the elderly population continues to grow, the fall risk continues to grow as well. 60 percent of nursing home residents suffer at least one serious fall.
Many of these victims have pre-existing conditions. So, nursing home fall injuries are usually quite severe. That pre-existing condition could be an old injury, like a bad knee, or a current chronic condition, like arthritis.
Even if the victim had a pre-existing condition, nursing home accident attorneys can use the eggshell skull rule to obtain maximum compensation for victims. The eggshell skull rule basically says that tortfeasors (negligent actors) take victims as they find them.
Damages in a fall injury case usually include compensation for economic losses, such as medical bills, and non-economic losses, such as pain and suffering.
What Causes Nursing Home Falls?
As mentioned, the elderly population is growing at an unheard-of rate. By 2035, the Census Bureau estimates that the over 65 population will exceed the under 18 population. This shift has drastic implications for society in general, and for nursing home fall claims in particular. Elderly population growth, and the nursing home industry’s efforts to cash in on this growth, are directly and indirectly responsible for most nursing home falls.
To create extra space, many long-term care facilities are almost always under construction. Different Medicaid reimbursement policies fuel this physical growth. In the late 1990s, as part of some sweeping welfare reforms, Medicaid lowered its reimbursement rates and also changed the way it pays providers. So, the only way nursing homes make money is to take in as many residents as possible.
As outlined below, nursing home residents are less able to see construction hazards, like uneven floors, and less able to avoid these hazards.
Increased revenue may not be enough. So, many nursing homes are understaffed, since staff reductions are a common cost-cutting measure.
Understaffing sometimes leads to falls. For example, assume Mary is supposed to watch a construction area and make sure no residents wander into the danger zone. But Mary leaves that post to help another employee. As a result, a dementia patient wanders into the construction area and falls. Even though Mary’s heart was pure, she was still negligent, and the company which employed her is still responsible for damages.
Your Claim for Damages
Texas premises liability law covers incidents like slip-and-fall injuries and swimming pool drownings. The Lone Star State’s premises liability system is based on a very old classification system. This system divides victims into:
- Invitees (people with permission to be on the property and whose presence benefits the owner),
- Licensees (permission but no benefit), and
- Trespassers (no permission and no benefit).
The duty of care varies at each level. For example, nursing home residents are clearly invitees. They have permission to be at the facility, and the owner benefits economically because of their presence. Since there is such a close relationship, the duty of care is high. If the victim was an invitee, the owner has a duty of reasonable care. That duty involves a responsibility to ensure property safety as well as inspect the property frequently.
To reduce their liability, nursing home owners often argue that nursing home visitors are licensees. If that’s true, the owner only has a duty to warn about latent (hidden) defects, such as a “Warning: Lose Handrail” sign.
Arguably, however, nursing home guests are invitees. They have permission to be at the facility. Furthermore, visits cheer up residents, and happy residents benefit the owner. The law does not require a substantial benefit. Any benefit will do.
Nursing Home Falls and Tort Reform
Unintentional falls are part of the ongoing tort reform wars, especially in medical facilities. These laws typically either reduce damages available or create hurdles to legal claims. In Texas, lawmakers have passed damage caps in healthcare liability cases, added strict requirements for expert reports and changed the standard of care to require victims to establish that the level of care was below the accepted medical standard. Politicians have also passed a statute of repose, which is different from a statute of limitations, in certain construction defect cases.
In the slip-and-fall context, the Texas Supreme Court has made it harder for victims to obtain the compensation they deserve. These changes underscore the need for an experienced personal injury attorney. Without such representation, your chances for fair compensation are slim.
For example, in 2017, the Texas Supreme Court reconfirmed the open and obvious defense. If the victim slips on an open and obvious hazard, like colored liquid on the floor, the landowner may not be liable for damages.
But an open and obvious hazard to a young person is not the same as an open and obvious hazard to an old person. Many older people suffer from Age-related Macular Degeneration. AMD blurs vision. So, many nursing home residents cannot see hazards as well as other people.
Other tort reform slip-and-fall examples include the watering down of the res ipsa loquitur rule. This doctrine made it possible to prove fall liability without a corroborating witness.
Nursing home fall victims face many hurdles to bringing a successful claim against the nursing home for negligence. It is critical that victims consult a qualified personal injury lawyer to determine their best course of action following an injury at a nursing home.
Sharon Simmons-Cantrell currently runs the pre-litigation department at Simmons and Fletcher, P.C. She earned her law degree at the University of Houston Law Center in 1991. From meeting with victims, to negotiating with insurance adjusters, Sharon understands every step of the legal process and always goes the extra mile to provide her clients with comprehensive legal representation.