My confused patient fell when she got out of a chair and broke her hip. She was a high risk for falls. Should I be worried? Should I move my assets to my husband and kids? Should I get liability insurance, or is it too late? Is liability insurance good for past incidents?
Nancy Brent replies:
Whenever a patient for whom one is caring is injured, a nurse should be concerned that the care provided was consistent with standards of practice for that patient. Additionally, a nurse also needs to be certain he or she did not provide what may be viewed as negligent care that caused the injury. In this instance, the patient was at a “high risk” for falls. This designation was hopefully determined after a careful assessment of the patient and safeguards were then put in place within the facility (and pursuant to its policy) for those who have this designation. Such protections might include the consistent use of side rails, careful and consistent monitoring of the patient at all times, and the utilization of proper transfer techniques by nursing staff.
Courts often deal with this kind of situation. For example, in D’Elia v. Menorah Home & Hospital for the Aged & Infirm (NY-2008), a 91-year-old resident who had many medical problems fell twice while going to the bathroom without help. The patient’s daughters spent most of the days with her and hired a companion to be with their mother during the day and assistants to stay with her during the night. The nursing home assessed the resident as being at risk for falls. One of the daughters decided to spend the night with her mother, but she was asked to leave the resident in the early morning hours after assurances were given to her that the mother would be carefully monitored. Several hours later, the resident was found on the floor, after apparently falling while trying to go to the bathroom. Her hip was broken. She died the next day.
A suit was filed by the decedent’s administrator alleging negligence against the nursing home for failing to monitor the resident and failing to utilize restraints. A series of legal motions were presented at the trial level. The trial court opined that since the decedent’s negligence claim involved malpractice and the decedent did not file an affidavit of a medical expert (required in such cases), the nursing home’s motion to dismiss the complaint against it was granted. The decedent’s administrator appealed that decision. The Appellate Division of the Supreme Court of New York reversed that judgment and reinstated the case. The court held that since medical malpractice is a form of negligence, the two are not mutually exclusive. Moreover, nursing homes and hospitals, the court continued, have an obligation to protect patients’ safety when the patient is unable to do so for himself or herself. In the end, the court stated it is the jury that is the trier of fact and the jury is to make the decision about what distinctions, if any, exist between ordinary negligence and malpractice (49(1) NLRR 2008, 3).
A consultation with a nurse attorney or attorney in your state who concentrates his or her practice in professional negligence would be a good idea in order to obtain specific answers to the issues included in your question.