Below is a case we handled last year. Unfortunately, we’ve seen and handled similar cases many times before. A resident falls numerous times and eventually they suffer a fractured hip, head trauma or in this case, death. This particular gentleman had four falls in less than 30 days. The nursing home, despite their own written policy, did little or nothing to investigate and prevent future falls.
PATIENT’S COMPENSATION FUND STATE OF LOUISIANA
PCF NUMBER: 20xx-0034xx
POSITION PAPER ON BEHALF OF
KENNETH D. ST. PÉ KENNETH D. ST. PÉ, APLC
La. Bar Roll No. 22638
311 West University Avenue, Ste. A Lafayette, LA 70506
BASIS FOR THE CLAIM
On or about December 6, 2012, Complainants’ father, ED, Sr., suffered his fourth fall in less than thirty (30) days at the nursing home of the defendant, Heritage Manor. He sustained a right hip fracture and was transported to Opelousas General Hospital. He died a week later from complications related to the injury. The evidence to be discussed below will show that defendant, Heritage Manor, breached the standard of care owed to Mr. D in failing to institute the appropriate measures to prevent his fall. Specifically, defendant failed in the following, to-wit:
- Failed to properly investigate previous falls so as to institute measures to prevent future falls;
- Failed to refer D to their Fall Management Committee required under their own policy and procedure;
- Failed to update D’s care plan with specific approaches to prevent future falls as required under federal law; and
- Failed to discuss his previous falls with Mr. D’s physician so as to prevent future
These failures are not disputed and defendant’s own DON, Rachel S, has acknowledged in deposition testimony that this is a breach of the standard of care. The elderly are prone to falls. Not every fall can be prevented but the defendant has an affirmative duty to intervene in an attempt to prevent future falls. Failure to do this creates a presumption that future falls are avoidable and that defendant is therefore responsible.
RELEVANT MEDICAL HISTORY
Mr. D, Sr. was a 94-year old male who came to defendant’s facility after a hospital stay in September of 2012. He had been seen for general weakness, acute kidney injury, urinary tract infection, pneumonia, sepsis and anemia. The hospital’s discharge report of Dr. Freddie F. dated September 10, 2012 is attached herewith as Exhibit A. Dr. F. noted he transferred Mr. D to Heritage Manor so that Mr. D would receive skilled nursing care to aid in his recuperation and recovery.
Attached herewith as Exhibit B are departmental notes (nurses’ notes), from Heritage Manor of O. These indicate that Mr. Dominick was initially doing well at defendant’s facility but did have some problems with regulating his blood glucose levels. His first reported fall according to these notes occurred November 3, 2012. He was found on the floor by a CNA when she entered his room. His second fall was reported November 23, 2012 and his third fall occurred just three (3) days later, November 26, 2012. His fourth and last fall charted was December 6, 2012.
Attached herewith as Exhibit C are Heritage Manor’s incident report and investigative reports for these four (4) falls. This panel will note that the facility investigated the first fall on November 3, 2012 and noted its probable relationship to his blood glucose levels. The Incident Investigation for that fall noted “nurse reports the CNA did not inform her that the resident did not consume his HS snack and that she did not follow up after administering insulin. This is the
most probable reason for the fall.” Although the facility completed incident reports for the
subsequent falls on November 23, 2012 and November 26, 2012 it did not conduct an incident investigation. There was no analysis or investigation into the cause of these falls.
Attached herewith as Exhibit D are excerpts from Mr. D’s SNF Documentation Record. On November 26, 2012 this note describes an overall decline in Mr. D’s ADLs and that he required extensive assistance with ADLs. The SNF Documentation Record of November 29, 2012 stated that Mr. D required two (2) person physical assist with transfers due to fatigue and upper and lower extremity weakness. He required a one person physical assist with bed mobility due to fatigue and had bilateral upper extremity weakness causing an inability to grasp the side rails enough to turn himself. A second SNF document record from November 29, 2012 describes Mr. D as having difficulty with ambulation, poor balance, unsteady gait and generalized weakness. There was a decline in his speech intelligibility and ability to make needs known.
SNF documentation from November 29, 2012 describes a similar picture. He required a one person assist to transfer and rest periods while eating due to fatigue. Similarly, a second SNF documentation records from November 29, 2012 noted weakness and extensive assist with transfers, ambulating to and from the restroom. Similar observations were made throughout this time period (referring specifically to the time period between his fall of November 26, 2012 and December 6, 2012). It was noted, however, that Mr. D was compliant and participating in his therapy. Attached herewith as Exhibit E is his Social Services Assessment from November 29, 2012. He is described as polite and friendly. He participated in care with nursing staff and in therapy. His family was involved and visited often.
Excerpts of Mr. D’s care plan which were attached to Rachel S’s deposition as Exhibit 2 are attached herewith as Exhibit F. This document is relevant for what is not contained in it. Although the nursing home charted his multiple falls by handwriting on the
record, there were not specific approaches for preventing further falls save the addition of a bed alarm on November 26, 2012 and toileting every two (2) hours. (Exhibit F p.6)
THE STANDARD OF CARE
Heritage Manor has a policy and procedure in place for preventing falls. Attached herewith as Exhibit G are excerpts from that policy and procedure titled Fall Prevention and Management Program. This panel will note the requirement to refer individuals such as Mr. D who have had a series of falls to a Fall Management Committee. The purpose of the committee is to meet and review falls so as to investigate the cause and prevent future falls. Attached herewith as Exhibit H are defendant’s responses to interrogatories requesting documentation on whether Mr. D was referred to the Fall Management Committee. He
Fall prevention programs at nursing homes are instituted so that the facility can insure that it complies with federal law which requires the facility take measures to prevent accidents/falls. Nursing homes are heavily regulated by both state and federal guidelines. These guidelines establish the standard of care. 42 CFR 483.25(h) requires specifically “the facility must insure that (1) the resident and environment remains as free of accident hazards as is possible; and (2) each resident receives adequate supervision and assistance devices to prevent accidents. This guideline provides specific instruction on different measures to be used and identified in preventing falls. The federal regulation notes specifically, “The intent of this provision is that the facility identifies each resident at risk for accidents and/or falls and adequately plans care and implements procedures to prevent accident.” (emphasis ours)
Attached herewith as Exhibit I is the deposition of Heritage Manor Director of Nursing, Rachel
- This panel is encouraged to read Mrs. S’s deposition in its entirety. Complainant calls this panel’s attention to some of the key testimony:
- At pages 12 through 14 she acknowledges the federal regulations (OBRA) and the facility’s policy and procedure as the standard of
- At page 22 she notes that Mr. Dominick should have been referred to the Fall Management Committee.
- At page 26 she testifies that fall prevention protocols are the minimum
· At page 34 she testifies that if the approaches on the care plan are not working other interventions should be added.
- At page 36 she testifies regarding the facility’s duty to investigate to see how falls occurred and to put interventions in place to address issues the investigation has revealed.
- At page 37 she testifies that investigation is the standard of
- At page 40 she was asked to review the care plan (Exhibit F).
- At page 41 when examining the care plan she notes it should have had more information regarding Mr. D’s falls.
- At page 44 of her deposition she acknowledges that Mr. D’s care plan approaches were not working.
- At page 51 and 52 of her deposition she notes the standard of care required the facility to discuss D’s November falls with his doctor. She stated further that if done, this would have been placed in the nurses’ notes. (The panel will note from the departmental notes the doctor was never contacted regarding attempts to prevent Mr. D’s falls.)
SPECIFIC BREACHES BY HERITAGE MANOR
Defendant will be providing this panel with a complete copy of Mr. D’s chart from Heritage Manor. Plaintiffs will not duplicate that production but instead are providing excerpts which we feel are relevant. In looking at both the excerpts and the entire chart this panel will see that Heritage Manor did nothing more than follow the “canned” measures regarding falls. In other words, they recognized he was a fall risk and their computerized care plan spit out a list of standardized approaches to prevent falls. Short of documenting in handwriting that he had falls, nothing more was done. This is not the standard of care. The standard of care requires a personalized care plan and a hands-on approach to each resident. The federal regulations regarding care plans is found at 42 CFR 483.20(k). It notes:
“(1) The facility must develop a comprehensive care plan for each resident that includes measurable objectives and time tables to meet the resident’s medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment…
(2) A comprehensive care plan must be –
(iii) periodically reviewed and revised by a team of qualified persons after each assessment.”
1. Heritage Manor failed to properly investigate the falls
This panel need only review Exhibit C to determine that with the exception of his first fall on November 3, 2012, the facility failed to investigate his subsequent falls. The first fall included an incident report and an investigative report. It noted the probable cause of that fall
was related to low blood sugar. This was not done for the subsequent falls on November 23, 2012 and November 26, 2012. The facility’s policy and procedure, federal law and the testimony of their own DON are unequivitable proof that the failure to investigate is a breach to the standard of care.
2. Mr. D was never referred to the Fall Management Committee.
The defendant acknowledges that there are no records documenting that Mr. D was ever referred to the Fall Management Committee. This was required under the facility’s own policy and procedure. It is an attempt to meet the requirements of the federal law. It is necessary as described by their own DON, Rachel S. It is the standard of care and defendant’s failure here is a breach.
3. Mr. D’s care plan was never updated.
This panel need only review page 6 of Exhibit F, (Mr. D’s care plan) and see that there was a lack of specific interventions and approaches to deal with Mr. D’s falls. Defendant did add a bed alarm and toileting; however, this is not the standard of care. These things are band-aids. The standard of care required a personalized approach through proper investigation and assessment. This was never done for Mr. D and is a breach of the standard of care.
4. Heritage Manor failed to discuss Mr. D’s falls with his physician.
Heritage Manor’s DON, Sebastien, acknowledged in her deposition the duty to keep the resident’s physician informed of falls and to seek his guidance. This panel is no doubt aware that it cannot provide good care to its patients if the nursing staff responsible for that patient is not providing it with necessary information. The nurses’ notes (departmental notes), SNF documentation record, care plan and any and all records from Mr. D’s charts are void of
any contact to his physician on the issue of preventing falls. This is a breach of the standard of care.
Attached herewith as Exhibit J are excerpts from Mr. D’s medical records at Opelousas General Hospital. The December 10, 2012 report of Dr. Porubsky describes that Mr. D was “ambulating with a walker” when he fell and had complaints of right hip pain. The consultation report of Dr. Jose Santiago dated December 14, 2012 describes a pulmonary evaluation. It appears that Mr. D likely developed a pulmonary embolism as a result of his hip fracture. Dr. Santiago’s report is significant for his impression of acute respiratory failure and cardiopulmonary arrest. He notes at page 6 of his report his concerns regarding the possibility of a pulmonary embolus as the source of Mr. D’s cardiopulmonary arrest.
This panel is no doubt aware of the numerous studies regarding the relationship of hip fractures and death in the elderly. Mr. D was an elderly man and his health was no doubt declining. The hip fracture which occurred on December 6, 2012 caused or contributed to his death.
There are factual disputes regarding how this fall occurred. The panel will no doubt see discrepancies between the nurses’ notes and the investigative report regarding the fall. Was Mr. D ambulating with his walker as reported to Dr. Porubsky? Was he in the hall at the time of his fall? Was he in his room? Was any staff with him at the time of his fall? These are factual issues which will have to be resolved through further litigation. What is clear; however,
is that Heritage Manor was not following the standard of care in preventing falls. The failure to investigate, care plan, refer to a fall management committee, and notify the doctor, are all breaches in the standard of care. Complainants seek a finding from this panel acknowledging these breaches and his damages from the fall.
RESPECTFULLY SUBMITTED, KENNETH D ST. PÉ, APLC
KENNETH D. ST. PÉ
La. Bar Roll No. 22638
311 West University Avenue, Suite A Lafayette, LA 70506
GLOSSARY OF EXHIBITS
Exhibit A Hospital’s discharge report of Dr. Freddie F dated September 10, 2012.
Exhibit B Departmental notes (nurses’ notes), from Heritage Manor.
Exhibit C Heritage Manor’s incident report and investigative reports for these four (4) falls.
Exhibit D Excerpts from Mr. D’s SNF Documentation Record.
Exhibit E Ervin D’s Social Services Assessment from November 29, 2012.
Exhibit F Excerpts of Mr. D’s care plan which were attached to Rachel S’s deposition as Exhibit 2.
Exhibit G Excerpts from that policy and procedure titled Fall Prevention and Management
Exhibit H Defendant’s responses to interrogatories requesting documentation on whether Mr. D was referred to the Fall Management Committee.
Exhibit I Deposition of Heritage Manor Director of Nursing, Rachel S.
Exhibit J Excerpts from Mr. D’s medical records at Opelousas General Hospital.