Can my family hold the nursing home accountable for a fall that was most likely preventable?

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Can my family hold the nursing home accountable for a fall that was most likely preventable?

My grandfather had a bad stroke 3 months ago and has sense been put in a nursing home. He has little to no functionality of his left side and this morning he fell out of bed trying to reach for food that was placed out of his reach. The fall resulted in a visit to the emergency room and we’re still waiting to hear if there were any significant injuries. Can the nursing home be held accountable for his fall? I don’t believe proper precautions were taken to prevent him from falling. There were no floor mats placed by his bed to cushion a fall and no bed rails to keep him secure in his bed.

Asked on March 11, 2012 under Malpractice Law, North Carolina

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Sorry to hear about your grandfather.

You may have a claim for negligence against the nursing home.  Negligence is the failure to exercise due care (that degree of care in this case that a reasonable nursing home would have exercised under the same or similar circumstances to prevent foreseeable harm).

In order to prove negligence, you will need to prove duty (of due care mentioned above), breach of duty (failure to exercise due care to prevent your grandfather from falling), actual cause, proximate cause and damages.  Actual cause means but for the nursing home not having floor mats and/or bed rails, would your grandfather have been injured?  If the answer is no, actual cause has been established.  Proximate cause means were there any unforeseeable, intervening acts which would relieve the nursing home of liability?  If the answer is no, proximate cause has been established.  Damages means the amount of compensation your grandfather (parties acting on his behalf)  is/are seeking in the lawsuit.  Your grandfather's damages would include the medical bills from his fall and pain and suffering.  Compensation for the medical bills is straight reimbursement.  Compensation for pain and suffering is an amount in addition to the medical bills.  The medical reports will document the nature and extent of your grandfather's injuries and will be used to determine compensation for pain and suffering.

Prior to filing a lawsuit against the nursing home for negligence, it may be possible to settle the case with the nursing home's insurance carrier.  The personsl injury claim would include the medical bills and medical reports.  If you are dissatisfied with settlement offers from the insurance carrier, reject the settlement offers and file a lawsuit on behalf of your grandfather against the nursing home for negligence.  If the case is settled with the insurance carrier, NO lawsuit is filed.  If the case is NOT settled with the nursing home's insurance carrier, your grandfather's lawsuit for negligence against the nursing home must be filed prior to the expiration of the applicable statute of limitations or your grandfather will lose his rights forever in the matter.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

There are two separate issues here:

1) Might the nursing home be liable? Possibly, if they were negligent, or unreasonably careless (as judged by the standard of proper nursing home care) in terms of their anti-falll precautions.

2) Do you have anything to sue for? The U.S. legal system is designed to provide compensation for actual costs and injuries. If your grandfather is, we hope, fortunate enough to not have been injured by the fall, then the only thing you would potentially be able to sue for is the out-of-pocked (e.g. not covered by medicare, health insurance, etc.) cost of the emergency room and any ambulence ride(s), which may or may not be enough to justify a lawsuit.


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