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Legal Review and Commentary
Patient falls in shower after surgery, settles
News: A woman recovering from surgery in a hospital slipped and fell while taking a shower, which caused her to fracture two fingers. She sued the hospital and claimed that she was improperly left unattended. She also said the water accumulated on the tile floor because the shower failed to drain properly. The hospital principally argued that the woman was at fault in causing her own injuries because she failed to press the nurse call button when she finished showering, as she had been instructed. A jury apportioned 30% of liability to the woman and 70% to the hospital, after which the parties settled for $125,000.
Background: A 55-year-old woman underwent successful intestinal surgery. Three days after the surgery, while she still was recovering at the hospital, the woman was cleared to take a shower. A nurse placed a chair in the shower, helped the woman walk to the shower, and then left the patient unattended.
The patient finished her shower about 15 minutes later and attempted to leave the shower room by herself. She slipped, fell on the wet floor, and fractured two of her fingers on her nondominant hand. She underwent open reduction and internal fixation of her hand's fourth metacarpal, whereby doctors used plates and screws to stabilize the bone.
The woman sued the hospital and claimed that it was negligent in leaving her unattended in the shower room and not properly supervising her. She also maintained that the chair had been placed in the center of the shower stall, over the drain, thereby preventing the water in the shower from properly draining, and that the shower did not have a curtain or door saddle to prevent water from accumulating on the tile floor. The woman's expert engineer testified that the lack of a curtain or door saddle enabled about ¼- to ½-inch of water to pool in the room, thereby creating a dangerous condition. The plaintiff claimed that the pain and discomfort in her hand was ongoing.
The hospital disputed the plaintiff's claim that the floor was dangerous, and it argued that the shower room was equipped with a call button that the plaintiff should have used to inform the nurse's station that she was finished showering. The nurse who had assisted the woman to the shower room testified that she had told the woman to use the call button when she was finished, but that she left her alone to give her some privacy. The hospital's safety expert also testified that the tile's nonskid surface was designed to prevent slipping and that the floor was properly graded to allow for drainage.
A jury found that the hospital and the woman had both acted negligently, and it assigned 70% fault to the hospital and 30% fault to the woman. Before the jury returned to deliberate the exact amount of damages, the parties settled for $125,000.
What this means to you: This scenario raises a couple of key concerns for risk managers, the first of which is how crucial it is to involve experts and consultants in the process of designing a hospital room shower area. Cases involving slips and falls in a shower area inevitably lend themselves to a "battle of the experts" in the courtroom. "And in this case, it appears that the patient's experts were more persuasive," says Ellen L. Barton, JD, CPCU, a risk management consultant in Phoenix, MD.
Just a few of the considerations when designing a hospital room shower are: the texture and material of the tiles used in the floor of the shower; the texture and material of the flooring immediately outside the shower; the inclusion and placement of railings or hand-holds in the shower and the bathroom; the location of the drain; the slope of the shower floor; the location of the shower head in the shower; and the intensity of the water flow from the shower head. While some of these factors are obvious, others deserve greater attention than they might normally receive. For example, because the location of the shower head in the shower and the intensity of the water flow from the shower head can affect the amount of water that splashes out of the shower and on to the bathroom floor, a second drain outside of the shower might be necessary in some hospital bathrooms. Risk managers should consider employing a consultant to review the design of their hospital's patient rooms, including the bath, shower, and toilet areas, in an effort to minimize the occurrence of injuries. Moreover, employing such a professional has the added benefit of buttressing the defense of a negligence claim because the hospital can show that it acted reasonably in relying on the opinion of a design professional.
It is often perceived that falls are more common among the elderly, with some studies, such as one in the American Journal of Public Health (1992; 82:1,020-1,023), showing that among older adults, falls are the leading cause of injury deaths and of nonfatal injuries and hospital admissions from trauma. Interestingly, though, this fact pattern shows that even middle-aged adults are at risk of injuring themselves from slipping and falling in a hospital setting. Indeed, considering that hospital patients usually are recovering from surgery or are otherwise not in perfect health, it is not surprising that such lawsuits involves patients of all ages. See, for example, Case No. 19264-98 in Nassau County, NY, 77-year-old male; Case No. 27152/94 in Suffolk County, NY, 32-year-old male; Case No. 98-1711 in Horry County, SC, 78-year-old female; Case No. 2520/97 in Kings County, NY, 46-year-old male; Case No. 381384 in Cuyahoga County, OH, 54-year-old female; and Case No. WOCV94-00185 in Worcester County, MA, 40-year-old female.
One aspect of slip and fall incidents that risk managers should be particularly sensitive to is the range and severity of injuries that can result. Studies such as one published in Academic Emergency Medicine (2000; 7:134-140) show, for example, that falls are a leading cause of traumatic brain injury. Other studies, such as one in The Journal of Trauma: Injury, Infection, and Critical Care (2001; 50:116-119), show that of those who fall, 20%-30% suffer moderate to severe injuries, such as hip fractures or head traumas, that reduce mobility and independence and that increase the risk of premature death. Because the risk of severe injury is so high with a slip-and-fall accident, it is not unusual for jury verdict awards to exceed $1 million, although those awards often are reduced to account for the patient's comparative fault. In this case, the hospital should feel lucky that its exposure was "only" $125,000.
The second issue highlighted by this case is the reality that a hospital can be found liable even where it appears it did not act negligently. "Although this is clearly a case where apportionment of negligence was appropriate, it appears that the jury should have reversed the percentages," says Barton. Assuming that the patient was mentally alert, she should have understood the instructions to use the call button and that the wet floor increased the need for her to be careful. She also should have understood that although she had been "cleared to take a shower," the fact that she was escorted to the shower and told to use the call button so that the nurse could escort her back to bed indicated that she should not ambulate alone. And Barton further highlights that it does not appear from the facts of this case that the patient rang the call button and the nurse was slow in responding. Rather, it appears that the patient never even tried to use the call button.
Barton also notes that it does not seem inappropriate that the nurse left the patient alone to shower and assumed that the patient would follow her instructions to ring the call button when she was finished. After all, the patient apparently did not need assistance in actually taking a shower, and giving a patient privacy to shower is a legitimate consideration.
When hospitals admit patients, they must provide a safe environment. And in cases such as this one, the nurses must be instructed as to how to caution patients sufficiently about the dangers of ambulating alone. Nevertheless, this case illustrates that injuries can occur even when a hospital has in place what it thinks are appropriate risk management protocols. As a result, Barton wryly recognizes that "it appears that hospitals must also provide compensation to an injured patient when the patient's actions prevent staff from keeping the patient safe!"