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Honesty Is the Best Policy (Along with Documentation)

03.01.2011

 
A quick Internet search reveals that the old adage, “honesty is the best policy,” is attributed to numerous sources. When it comes to reporting injuries from nursing home falls, however, it’s clear that Congress turned that policy into law. An Ohio lawsuit is now garnering national attention because the family of a nursing home resident alleges the facility failed to follow such law not once or twice, but 16 times.

The Lawsuit
According to the lawsuit, 83-year-old Gladys Feran, suffering from dementia, was a resident at Cleveland’s Larchwood Village Retirement Community. In April 2009, Feran fell and broke her pelvis. She died two weeks later. Her family alleges that the cause of death was “blunt impact to trunk with fracture of pelvis.”

As with any lawsuit, the family, in order to prevail, must establish that the facility was negligent. That is, the family must prove the facility failed to take reasonable steps to prevent Feran’s accident. The facility’s policies, Feran’s care plan and the training of the facility’s staff will all be fair game for the jury to examine.
 
What makes this case so different from other cases, though, is that Feran had fallen at least 16 times during her 17-month stay at Larchwood. Feran’s family claims they were not notified of any of these falls, and that they only learned of them once Feran was transported to the hospital after her final fall. In attempting to discover what had happened, the family learned that at least two earlier falls occurred when Feran, at the facility’s direction, was pushing other residents in wheelchairs. Feran had also suffered a fractured clavicle and hip in prior falls.

In the lawsuit, the family will want to use the facility’s failure to report the prior falls in an effort to persuade the jury that the facility was negligent. The facility, however, contends such evidence should be reserved for a separate trial on punitive damages. In other words, the facility believes the jury should focus only on the specific events that may have contributed to Feran’s final fall. Only if the jury finds that the facility was negligent could it then consider past events and failures. Splitting the trial in such a manner is common in cases involving significant damages, and whether such a split should occur in Feran’s case has now reached the Ohio Supreme Court. It may therefore be months, or even years, before the case goes to trial.

Lessons Learned
It is estimated that each year, a nursing home with 100 beds will report 100-200 falls. According to the Centers for Disease Control and Prevention, up to 20 percent of these falls result in serious injuries. Given the frequency of such falls, and their severity, nursing home facilities will have a number of opportunities to notify family members of a resident’s change in condition.
 
In Ohio, Feran’s family contends that the facility, when faced with such opportunities, engaged instead in an effort to conceal the accidents. The facility of course denies such a cover-up, but why allow your facility to be in such a position to begin with? A lawsuit over a fall may well be unavoidable, but following protocol when it comes to reporting will dispel any allegation of a cover-up and greatly reduce the risk that a case involving your facility will wind up in national headlines. Of course, all notifications should be documented in the resident’s file, so as to avoid a he-said, she-said dispute. This is also occurring in the Feran case, as the facility claims it did notify the family of a prior fall. Honesty and documentation are indeed the best policies.
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