Legal Options Following a Nursing Home Fall

| Apr 15, 2021 | Nursing Home Abuse And Neglect

Fall injuries are the leading cause of nursing home admissions. Instead of getting better at a long-term care facility, many of these fall victims get worse. Almost two-thirds of nursing home residents fall every year.

Repeat falls have especially severe physical and emotional consequences. Many people are still physically frail from their first falls. So, the head injuries, broken bones, internal injuries, and other fall-related wounds are worse. Emotionally, many people who have fallen twice are deathly afraid of falling again. So, they become almost completely immobile. This immobility makes them more vulnerable to a serious fall and a serious injury.

In terms of obtaining maximum compensation, a Lexington personal injury lawyer usually has multiple options. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Negligence Per Se

Essentially, negligence is a lack of care. As outlined below, the relationship between the victim and owner often establishes the standard of care. Sometimes, however, safety laws set the standard of care.

State and federal laws usually require safety accommodations for older adults, particularly at nursing homes. These safety precautions often include:

  • Grip bars in restrooms,
  • Anti-slip mats,
  • Upgraded handrails,
  • Special floor requirements, and
  • Additional lighting.

If the owner violates these safety requirements and that violation causes injury, the owner could be liable for the aforementioned damages.

Proving cause is sometimes tricky in negligence per se cases. That’s especially true if no one saw the fall. In busy nursing homes, someone could easily bump into the victim and cause a fall.

A legal principle called res ipsa loquitur (the thing speaks for itself) often comes into play in these situations. Generally, if the defendant had exclusive control over the premises and the injury is normally associated with negligence, jurors may presume that negligence caused a particular injury. 

To rebut this presumption, the defendant must produce a witness or other proof which shows that the fall had a separate cause.

Res ipsa loquitur is a bit harder to prove if the fall occurred in a hotel room, apartment, rental house, or other area which the landowned did not exclusively control.

Ordinary Negligence

Res ipsa loquitur sometimes comes up in ordinary negligence claims as well. As mentioned, the first step in any negligence claim is establishing the standard of care. 

All nursing home residents are invitees in Kentucky. These victims have the owner’s permission to be on the land. Furthermore, they benefit the owner economically, because residents pay to live at a long-term care facility. Sometimes, Medicare or another third party pays, but that doesn’t matter. The benefit is all that matters.

Since the victim/owner relationship is so close, owners have a duty of reasonable care in these situations. This duty requires them to frequently inspect the property for fall hazards and quickly address these hazards.

Licensee (permission but no benefit) and trespasser (no permission and no benefit) are the other two categories. Owners have substantially fewer legal responsibilities in these situations.

Res ipsa loquitur often establishes the practical element in a negligence per se claim. Many ordinary negligence fall claims rely on a different legal rule, which comes from 1911’s Anjou v. Boston Elevated Railway Company.

Ms. Anjou slipped and fell on a banana peel which, according to witnesses, was black and gritty. The court concluded that the peel’s condition indicated that it had been on the floor for some time, and therefore someone should have picked it up. So, the defendant was liable for Ms. Anjou’s damages.

The same idea applies to a wet spot on the floor or another such hazard. Long-lasting hazards usually mean that constructive knowledge (should have known) attaches.

Insurance Company Defenses

Comparative fault is perhaps the most common insurance company defense in negligence claims. In a nursing home fall claim, the defendant usually blames the victim for not avoiding the hazard or not avoiding a fall.

Older adults don’t avoid things very well. Age-related Macular Degeneration often blurs the straight-ahead vision they need to see floor hazards and maintain balance. Gait disorders, like shuffling feet, often mean that when these victims stumble, they always fall. So, an injury that a younger person could avoid is unavoidable for many nursing home residents.

Other times, the nursing home owner posts a warning sign, like “Construction: Keep Out.” These signs are not get-out-of-jail-free cards. Defendants must prove victims could see the sign, could read it, and could understand what it meant. All three of these showings are often difficult to make in nursing home fall claims.

Nursing home fall victims are usually entitled to significant compensation. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. You have a limited amount of time to act. #goodelawyers