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By Damian D. Capozzola, Esq.
The Law Offices of Damian D.
Jamie Terrence, RN
Director of Risk Management
California Hospital Medical Center Los Angeles
News: An 81-year-old woman recovering from hip replacement surgery suffered significant injuries including a femur fracture, head injury, and cerebral stroke when she fell from a hospital bed and required an emergent second hip repair surgery. The plaintiff contended that the hospital and its nurse employee were negligent because they had failed to provide reasonable and prudent care. Defendants denied liability and the significance of the damages. The jury assessed $3.5 million in damages against the hospital.
Background: In this matter, the plaintiff was an elderly woman who initially presented to the hospital for a right hip arthroplasty that occurred without incident. Subsequent to the surgery, the patient was a high, if not extreme, fall risk who required fall-prevention interventions. In particular, it was alleged that subsequent to the surgery, she was noted to have advanced age, gait and vision problems, mind-altering medications, and an altered mental status (anxiety, confusion, and tearfulness). The patient was said to be noncompliant with instructions. She repeatedly tried to get out of bed despite instructions to remain in bed, and she tried to remove IV lines, the plaintiff said. It was further alleged that this information was not communicated properly to incoming staff during change-of-shift report. In fact, during the morning shift immediately before her fall, the plaintiff was not assessed for fall risk, and the fall risk assessment record on her chart was left blank, the plaintiff said. These circumstances resulted in the patient falling out of bed, according to the plaintiff. The patient said that her fall caused a femur fracture that required immediate surgical repair, as well as a serious head injury that, within hours of the fall, resulted in a disabling stroke.
She contended that the hospital and the nurse were negligent and had breached appropriate standards of care toward her by, among other things, failing to properly assess her high or extreme fall risk, by failing to monitor her on a timely and meaningful basis, and by failing to employ fall risk interventions such as bed side rails, bed alarms, a sitter, or soft restraints.
The plaintiff demanded $10 million in compensatory damages, and she also demanded punitive damages. Defendants denied liability for negligence, and they also denied the cause of the damages in light of the plaintiff’s advanced age and other comorbidities. Members of the jury awarded a verdict of $3.5 million against the hospital, and it subsequently was reduced to $1.8 million under applicable Virginia law capping medical malpractice damages. The jury returned a verdict in favor of the individual nurse.
What this means to you: There are an estimated 700,000 patient falls happening in hospitals annually, and roughly one-quarter of those result in injury. Prevention of falls has been and remains a priority for hospitals and other healthcare providers. Indeed, estimates are that between 2-10% of all hospital inpatients fall, and 10% of those suffer serious or severe injuries. Note also that since 2008, the Centers for Medicare and Medicaid Services (CMS) has refused to reimburse hospitals for treatments of complications arising from a fall that results in a fracture or other serious injury. All of that noted, cutting the number of annual falls to zero is probably unrealistic, especially given that sometimes hospitalized patients need treatments that require the risk of mobilization to prevent bed-rest complications such as pressure ulcers and deep-vein thrombosis, or to facilitate physical therapy where weight bearing within a certain amount of time after surgery is recommended.
Falls typically involve elderly patients, and advanced age on its own is a universally recognized risk factor along with confusion, intermittent or recent fall history, and current attempts to get out of bed unassisted. That said, while for those reasons the focus of fall prevention is often on the frail elderly, hospitals must also keep in mind that younger, independent patients often fall as well. These patients are frequently not assessed as being at risk to fall because they are alert, oriented, and capable of independent ambulation.In these cases, younger patients who undergo surgery or other procedures might not realize that they are limited by pain medications, weakness in a limb, disorientation to their environment, or other factors. Their drive to remain independent and their reluctance to call for assistance can make it extremely difficult to protect them from a fall. They often refuse bed alarms, side rails, and restraints. These sorts of patients often need "tough love," and it’s important to impress this information upon their family and frequent visitors as well.
When a patient fall occurs in a hospital, the dominant legal theory at issue is almost certainly going to be negligence. Stripped of the legal mumbo-jumbo, what the judge and jury will be looking to determine is whether the hospital and its employees behaved reasonably in light of generally applicable standards of care and the particular circumstances surrounding the particular patient. This examination will give rise to more specific questions such as whether the data concerning the patient was reasonably shared among providers and staff and reasonably interpreted, and whether reasonable steps were taken to prevent the patient from falling.
Every hospital should have a well-established and publicized set of protocols for fall prevention. All providers and staff that interact with patients in any capacity that could relate to a fall incident should be trained concerning these protocols on a periodic and documented basis. Such protocols should include, but not necessarily be limited to, the following:
Also, if a fall occurs, it is important to promptly and accurately document the resulting injuries and steps taken for treatment, and to consult with legal counsel if there are any questions about what should or should not be documented. In the case discussed above, there was also a thread of allegations of improper documentation concerning the head injuries the plaintiff sustained as a result of her fall. The patient said that when she fell, she hit her head on the metal base of her portable tray table. She alleged that the nurse and the hospital kept that information out of the patient’s medical record and instead noted that fact in a document they believed the patient might not have been able to access.
There are doctrines such as the attorney-client privilege and the peer review privilege that might apply to shield certain documentation from discovery. However, it is critical that those doctrines are properly applied and not abused or misinterpreted and thus make it appear that the hospital or provider has been trying to cover up information. This appearance of cover-up potentially can lead to several bad developments such as the imposition of discovery sanctions, adverse jury instructions (telling the jury to consider that the hospital tried to hide or destroy information), or even substantively unfavorable rulings on the merits of the case.
Keep in mind that when a patient falls and suffers a head injury, he or she might not remember the fall or the circumstances leading up to the fall. Credible documentation that is as "real-time" as possible concerning the circumstances before, during, and after the incident will be the hospital’s best opportunity to demonstrate that it behaved reasonably and that it did not subsequently try to paper the file with documentation shaded in its favor, once it learned that the patient was unlikely to have an independent recollection of the events.
Circuit Court of Virginia Case No. CL 1101633F-15