The Mn Criminal Defense, Personal Injury & Family Law Blog
A Brainerd Personal Injury Lawyer Talks About Nursing Home Falls
April 26, 2019
The long-predicted elderly population explosion is here. Moreover, we are headed for another sea change. The U.S. Census Bureau predicts that, for the first time, people over 65 will outnumber people under 18 by 2030. This demographic shift has some implications for society, mostly in terms of a lower birth rate.
The change has even stronger implications for Brainerd personal injury attorneys. A rapidly-climbing elderly population means that many nursing homes are essentially breeding grounds for falls.
To accommodate an expanded population, many long-term care facilities are always under construction. So, there are physical hazards everywhere, especially for people who are prone to falls and serious injury. Additionally, many overcrowded nursing homes are always understaffed. Understaffing is especially a problem during low-census periods. On weekends and holidays, many Crow Wing County nursing homes resemble ghost towns.
What Causes Nursing Home Fall Injuries?
The increased fall and injury risk at nursing homes is not just statistical and theoretical. It’s also real and practical to Brainerd families.
Many older folks suffer from Age-Related Macular Degeneration. As we get older, fat accumulates underneath the retina. This drusen obscures the straight-ahead vision which people need to walk. The effects are so subtle that many people do not know they have AMD until it is too late. Vision conditions like AMD are even worse in low-light conditions and/or unfamiliar environments (e.g. the person just moved to the facility).
Additionally, many older people have pre-existing medical conditions. That could be an old injury, like a bad knee, or a chronic illness, like osteoporosis. If the fall aggravates the injury or illness, and not the other way around, a Brainerd personal injury lawyer can usually obtain full compensation for the injury. That’s a subtle distinction, but it makes a big difference.
Understaffing often plays a part here as well. When staff resources are stretched to the limit, fall prevention is often the last thing on the agenda.
To see how all these things come together, consider the following example. Because his dementia is getting worse, Joe’s family recently moved him to a nursing home. He is still rather disoriented. Late one night, when almost no staff people are around, Joe goes for a walk. Because of his deteriorating vision, and the lingering effects of a broken ankle, he does not get around as well as he used to. He wanders into a construction area, where he slips and falls. As outlined below, the nursing home is probably responsible for his damages.
We Brainerd injury lawyers often use examples like these as teaching tools. Legal concepts are complex, and admittedly, we sometimes stop speaking English and lapse into Legalese.
Brainerd Personal Injury Lawyers and Your Legal Options
Unsafe premises and employee neglect cause most nursing home falls. So, to obtain damages, a Brainerd personal injury attorney can pursue a premises liability or an ordinary negligence claim.
If the victim was an invitee, property owners in Minnesota owe the victim a duty of reasonable care. They must keep the premises reasonably safe and also inspect the property. An “invitee” is someone who had permission to be in the building and whose presence benefitted the owner in some way. Nursing home residents are definitely invitees. They pay money to live there. Guests may be invitees. Arguably, guests make residents happier, and the owner benefits as a result of that happiness.
Employee neglect, possibly due to understaffing, could cause a fall as well. Let’s talk about Joe some more. Assume that Juanita, a patient care technician, was supposed to make sure Joe stayed in his room. But because the nursing home was short-staffed that night, Juanita neglected her Joe-watching duties to help another employee. Even though her intentions were good, Juanita was still negligent.
Respondeat superior (“let the master answer”) is the applicable legal doctrine. Just like a captain is responsible for the conduct of a ship’s crew, an employer is responsible for any negligent acts its employees commit during the scope of their employment.
Breaking Down Some Common Insurance Company Defenses
In premises liability cases, lack of duty and/or lack of knowledge are the most common insurance company defenses.
If the victim was not an invitee, the owner may only owe the victim a limited duty of care, or there may be no legal duty at all. No duty, or no breach of duty, means no claim for compensation. To establish knowledge, victim/plaintiffs can show actual knowledge or constructive knowledge (should have known). If Joe slipped on an hours-old spill that no one had cleaned up, constructive knowledge probably attaches.
The assumption of the risk defense is common in negligent fall cases. This legal loophole excuses liability for damages if the victim:
A known risk.
Remember AMD? This condition often comes into play here. A young person may see a hazard and avoid it. But an older person may not be able to see the hazard, and therefore, not be able to avoid it.