Because of coronavirus, conditions at New York nursing homes were in the news in 2020. Falls are a serious health and safety issue year in and year out. Over half of all long-term care residents fall every year.
Typically, these incidents cause severe physical and emotional injuries. The physical injuries include broken bones and head injuries. Since many long-term care residents are physically frail, these injuries are usually not only serious. They’re generally permanent. Emotionally, many fall victims are so afraid of falling again that they completely withdraw from friends and family.
A New York personal injury attorney can obtain compensation for these injuries in court. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
What Causes Nursing Home Falls?
The love of money is a root of all kinds of evil, or in this case, all kinds of nursing home negligence.
Understaffing is a serious issue at about 90 percent of the long-term care facilities in New York. The duty of care, which is discussed below, usually requires nursing homes to station employees in hazardous areas, like construction areas, to ensure that wandering residents don’t come near such areas. Because of their diminished capacity, nursing home residents are especially vulnerable to falls in such areas.
On a related note, most nursing homes are almost constantly under construction. Most families only feel good about sending their loved ones to nursing homes that resemble resorts. Furthermore, more patient rooms means more income. So, nursing home owners usually want to expand their facilities whenever possible.
This expansion is very dangerous for many residents. Many older adults suffer from AMD (Age-related Macular Degeneration). This condition blurs the straight-ahead vision people rely on for balance. Other older adults shuffle their feet because they have gait disorders. So, when they stumble, they typically fallt. Many older adults live with both these conditions.
We can also blame the government for nursing home falls, at least indirectly. Nursing homes depend heavily on Medicaid patients. Until recently, most state-run Medicaid plans were FFS (fee for service) reimbursement plans. The state paid the nursing home for every staff-resident contact. As of 2019, about 90 percent of Medicaid plans had transitioned to managed care reimbursement. The state pays a flat fee for certain conditions. So, the nursing home loses money with each staff-resident contact.
FFS plans encouraged staffers to give residents vision tests and otherwise spot the aforementioned pre-existing conditions. Now, that incentive is gone. So, in many cases, residents are on their own.
Establishing Liability
The average out-of-pocket cost of a fatal slip-and-fall injury is a staggering $1.3 million. To obtain compensation for these economic losses, as well as the noneconomic losses mentioned above, a New York personal injury lawyer must establish duty and knowledge.
Duty of Care
All nursing home residents are invitees in New York. They have specific permission to be at the facility. Furthermore, their presence financially benefits owners. Mostly because of this benefit, the duty of care is very high in these situations.
The duty of reasonable care requires nursing home owners to continually ensure that their properties are reasonably safe. These safety inspections must be proactive. One safety inspection a month doesn’t cut it. Additionally, if an inspection uncovers a potential hazard, like an unsupervised construction zone, owners must take action.
In a negligence claim, if a breach of care causes injury, the defendant is liable for damages. More on a breach of care (knowledge of hazard) below.
Arguably, nursing home visitors are invitees as well. Usually, nursing home visitors provide a financial benefit. Frequently, they pay for parking or buy something from the gift shop. Additionally, nursing home visitors lift the spirits of nursing home residents, and the owner benefits as a result. Admittedly, these are pretty small benefits. But under New York law, any benefit will do.
The other two victim categories in the Empire State are licensee (permission and zero benefit) and trespasser (no permission and no benefit). The duty of care is considerably lower in these cases.
Knowledge of Hazard
Owners are only legally responsible for nursing home fall injuries if they knew, or should have known, about the hazard which caused the fall. Usually, owners are responsible for both indoor hazards, like uneven floors, and outdoor hazards, like ice patches in winter.
Ice patches also illustrate the two types of knowledge in these cases. If a worker, even if the worker isn’t a safety inspector, sees an ice patch, the nursing home must immediately address the hazard. Usually, this means blocking the walkway, melting the ice, or otherwise making the walkway reasonably safe.
A weather report could also suffice. If the temperature was below freezing while the ground was wet, it’s more likely than not that there was ice on the walkway. That’s especially true if ice patches are a problem on this particular stretch of walkway. So, even if the owner didn’t actually know about the ice, the owner knew about it, at least for negligence purposes.
Overcoming Defenses
Comparative fault, lack of evidence, and assumption of the risk are the most common insurance company defenses in nursing home fall claims.
In a fall claim, comparative fault is usually either a failure to watch where you’re going or a failure to keep your balance after slipping. As mentioned, older adults often have issues in both areas. So, the comparative fault defense often doesn’t hold up in court in these situations.
Evidence could be an issue because, in most cases, no one sees the victim fall. Mostly because of head injuries, the victim may be unable to reconstruct the events of the fall. New York’s res ipsa loquitur (the thing speaks for itself) rule usually comes to the rescue in these cases. If negligence usually causes an incident, jurors may typically presume that negligence caused a particular incident.
Assumption of the risk usually involves a warning sign, like “Construction Zone.” Even if the owner posted such a sign, compensation may still be available. The owner must prove, by a preponderance of the evidence, the victim saw the sign, could read the sign, and could understand what the sign meant.
Injury victims are usually entitled to substantial compensation. For a free consultation with an experienced personal injury lawyer in New York, contact the Pianko Law Group, PLLC. Virtual, home, and hospital visits are available.