An 88-year-old patient slips on the floor, falling and breaking his hip. Your immediate concern is getting him the help he needs, but you also wonder if you could be legally liable for what happened. By thinking like an expert witness, you can help determine if this concern is valid and whether you could have taken steps to avoid the situation in the first place. But first, you need to understand some background information.
From 2007 to 2016, the fall death rate for older adults in the United States increased by 30%, according to data from the CDC. Each year, 3 million older adults are treated in emergency departments (EDs) for fall injuries, and more than 800,000 people are hospitalized each year because of injuries related to a fall. These falls extract a high price—more than $50 billion for medical costs in a single year.
Nurse professional liability claims involving falls are identified in the Nurse Professional Liability Exposure Claim Report: 4th Edition. The report notes that many of the closed claims analyzed in the report dataset which involved falls occurred because the nurse failed to follow fall-prevention policies and procedures. Further, the report states that falls most frequently occurred in inpatient hospital, surgical services, and aging services settings, as well as in patients’ homes.
Given the statistics and the many places falls can occur, a fall is not an uncommon occurrence in a nurse’s career. A fall does not automatically mean the nurse is liable; for that to happen, key elements of malpractice need to be present.
Elements of malpractice
To be successful in a malpractice lawsuit, plaintiffs must prove four elements:
- Duty. A duty existed between the patient and the nurse: The nurse had a responsibility to care for the patient.
- Breach. The duty to care was breached; in other words, the nurse may have been negligent. To determine if negligence occurred, the expert witness would consider whether the nurse met the standard of care, which refers to what a reasonable clinician with similar training and experience would do in a particular situation.
- Injury. The patient suffered an injury. Even if a duty existed and it was breached, if no injury occurred, it’s unlikely the lawsuit would be successful. Keep in mind, however, that injury can be defined as not only physical injury, but also psychological injury or economic loss.
- Causation. The breach of duty caused the injury—the injury must be linked to what the nurse did or failed to do. This can be summed up in one question: Did the act or omission cause the negative outcome?
Expert witnesses will consider these four elements as they review the case, and they’ll ask multiple questions (see Was there liability?). The questions primarily address prevention and what was done after the fall occurred.
The following steps can help prevent falls and, if documented correctly, prove that the nurse took reasonable steps to protect the patient from injury:
Take a team approach. Registered nurses, licensed practical/vocational nurses, and certified nursing assistants are ideal members for a team dedicated to creating a falls reduction plan for each patient.
Assess the risk. Whether in the hospital, rehabilitation facility, clinic, or home, a comprehensive assessment is essential to identify—and then mitigate—falls hazards. This starts with assessing the patient for risk factors such as history of a previous fall; gait instability and lower-limb weakness; incontinence/urinary frequency; agitation, confusion, or impaired judgment; medications; and comorbid conditions such as postural hypotension and visual impairment. It’s also important to consider the environment, particularly in the home setting. For example, throw rugs are a known falls hazard.
An excellent resource for assessing community-dwelling adults age 65 and older is the CDC’s STEADI (Stopping Elderly Accidents, Deaths & Injuries) initiative, which is an approach to implementing the American and British Geriatrics Societies’ clinical practice guideline for fall prevention. The initiative provides multiple resources for clinicians, such as a fall risk factors checklist with the categories of falls history; medical conditions; medications; gait, strength, and balance (including quick tests for assessing); vision; and postural hypotension. Keep in mind that assessment should be ongoing during the patient’s care because conditions may change.
Develop a plan. Once the assessment is complete, the patient care team, including the patient and their family, can develop a falls-reduction plan based on the patient’s individual risk factors. The plan should address locations that are at greatest risk, such as bedside, bathrooms, and hallways, and detail action steps. Sample action steps include giving patients nonslip footwear, making sure call lights are within reach, removing throw rugs from the home, and providing exercises to improve balance.
Communicate. It’s not enough to create a plan; communication is essential for optimal execution. All care team members, including patients and their families, need to be aware of the patient’s fall risk and the falls reduction plan.
Communication also includes education. The STEADI initiative has falls prevention brochures for patients and family caregivers at www.cdc.gov/steadi/patient.html. Families often are underutilized as a resource for helping to prevent falls. They may know the best way to approach patients who are reluctant to follow falls-reduction recommendations and can take the lead to reduce home-related risks. The falls risk reduction plan, communication with others, and education provided should all be documented in the patient’s health record.
Was there liability?
If a patient falls, an expert witness will likely want to know the answers to the following questions (developed by Patricia Iyers) when deciding if liability may exist:
Before the fall:
- Was the patient identified as being at risk for falls? How was that risk communicated to others?
- What medications did the patient receive? Do they have side effects that may increase the risk of a fall?
- Were there specific conditions present that could increase the risk of a fall?
- Were measures implemented to prevent falls?
- Was the patient capable of using the call light and was it used to call for assistance?
- Was the bed in the lowest position?
- Were the lights on in the room or under the bed to help light the area at night?
- Was the patient given antiskid slippers?
Immediately after the fall:
- How soon was the individual found after he had sustained a fall (it’s not always possible to establish an exact time)?
- What was done at the time of the fall?
- Was the patient appropriately monitored after the fall to detect injuries?
- What did the assessment (including vital signs) reveal?
- Did the nurse communicate the findings to the patient’s provider?
- Were X-rays ordered and performed?
- Was there an injury? If so, how soon was it treated?
- If the patient hit their head, was the chart reviewed to determine if mediations included an anticoagulant? If on anticoagulant, was this information communicated to the provider so head scans could be performed to check for cranial bleeding?
Following up after a fall:
- Was there a change in mental status after the fall?
- Were additional assessments and monitoring done as follow up?
- Was the patient’s risk for falls reassessed after the fall and the plan of care revised to minimize the risk of future falls?
If a fall occurs
Despite nurses’ best efforts, a patient may fall. An expert witness will scrutinize how the nurse responded to the event. The following steps will help to reduce the risk of a lawsuit or the chances that a lawsuit is successful:
Assess the patient. Examine the patient for any obvious physical or mental injuries. For example, check vital signs; look for bleeding, scrapes, or signs of broken bones; ask the patient about pain; and check mental status. Do not move the patient if a spinal injury is suspected until a full evaluation can be made. Be particularly alert for possible bleeding if the patient is taking anticoagulants. When appropriate, ask patients why they think they fell and continue monitoring at regular intervals.
Communicate assessment results. Notify the patient’s provider of the fall and results of the assessment. The provider may order X-rays for further evaluation. Remember to mention if the patient is taking anticoagulants, particularly in the case of a potential head injury, so the appropriate scans can be ordered.
Revise the plan. As soon as possible after the fall, work with the team to reassess risk factors, revisit the falls reduction plan, and revise the plan as needed. For example, footwear may need to be changed, the amount of sedatives the patient is receiving may need to be reduced, or more lighting may need to be added to a hallway. It’s important that actions are taken to prevent future falls.
Document. Each step should be documented in the patient’s health record, especially all assessment results and provider notifications. The expert witness can then see that the nurse followed a logical progression, with thorough evaluation and follow-up. Never alter a patient’s health record entry for any reason, or add anything to a record that could be seen as self-serving, after a fall or other patient incident. If the entry is necessary for the patient’s care, be sure to accurately label the late entry according to your employer’s policies and procedures.
Unfortunately, patient falls are not completely avoidable. However, developing a well-conceived prevention plan can help reduce the risk, and taking appropriate actions after a fall can help mitigate further injury. Both prevention and post-fall follow up not only benefits patients, but also reduces the risk that the nurse will be on the losing side of a lawsuit.
Article by: Georgia Reiner, MS, CPHRM, Senior Risk Specialist, Nurses Service Organization (NSO)
Bono MJ, Wermuth HR, Hipskind JE. Medical malpractice. StatPearls. 2020. www.ncbi.nlm.nih.gov/books/NBK470573.
Centers for Disease Control and Prevention. Important facts about falls. www.cdc.gov/homeandrecreationalsafety/falls/adultfalls.html.
Centers for Disease Control and Prevention. STEADI: Materials for healthcare providers. 2020. www.cdc.gov/steadi/materials.html.
CNA, NSO. Nurse Professional Liability Exposure Claim Report: 4th Edition. 2020. www.nso.com/nurseclaimreport.
Dykes PC, Adelman J, Adkison L, et al. Preventing falls in hospitalized patients. Am Nurs Today. 2018;13(9):8-13. https://www.myamericannurse.com/preventing-falls-hospitalized-patients.
Iyer P. Legal aspects of documentation. In: KG Ferrell, ed. Nurse’s Legal Handbook. 6th ed. Wolters Kluwer; 2015.
Van Voast Moncada L, Mire GL. Preventing falls in older persons. Am Fam Physician. 2017;96(4):240-247. https://www.aafp.org/afp/2017/0815/p240.html.
The information offered within this article reflects general principles only and does not constitute legal advice by Nurses Service Organization (NSO) or establish appropriate or acceptable standards of professional conduct. Readers should consult with an attorney if they have specific concerns. Neither Affinity Insurance Services, Inc. nor NSO assumes any liability for how this information is applied in practice or for the accuracy of this information.
This risk management information was provided by Nurses Service Organization (NSO), the nation's largest provider of nurses’ professional liability insurance coverage for over 550,000 nurses since 1976. The individual professional liability insurance policy administered through NSO is underwritten by American Casualty Company of Reading, Pennsylvania, a CNA company. Reproduction without permission of the publisher is prohibited. For questions, send an e-mail to email@example.com or call 1-800-247-1500. www.nso.com.