Policy and Proceedure to prevent nursing home falls

Nursing homes have an affirmative duty to prevent accidents and falls.  Federal law requires this and their own policy and procedure manuals dictate what is to be done.  Amazingly, those written policies are often ignored.  Below is argument presented on behalf of a resident who fell nine (9) times in six months!  The nursing home staff did little or nothing to try and prevent his falls.

BRIEF FACTUAL HISTORY

Plaintiff was a 78-year-old resident at Azalea Villa Nursing Home when he fell and fractured his left hip August 17, 2003.[1]  The fall was Mr. D’s ninth in the six months since he had been admitted to defendant’s facility, February 15, 2003.

The fall was unwitnessed.  Mr. D was found on the floor in the living room area of the nursing home at roughly 5:30 p.m.  Azalea Villa’s incident report indicates that he was able to stand and bear weight after the fall and that he denied being hurt.[2]  The following morning, the Azalea Villa nurses’ notes indicate Mr. D was up in his wheelchair and presented with complaints of left leg pain from the left femur on down.  Eventually, an x-ray was ordered and although it is not clear from the notes, the fracture was discovered.[3]  Mr. D was transferred to the hospital and underwent surgery for the fracture August 19, 2003 performed by Dr. Edward Lisecki (Exhibit “A”).

OVERVIEW OF PLAINTIFF’S ARGUMENTS

The evidence to be discussed below will show that Azalea Villa breached the standard of care in failing to take the necessary and required action to prevent Mr. D’s falls.  The standard of care is established by federal law under the Omnibus Budget Reconciliation Act (OBRA).  The standard was also established by the nursing home’s own policy and procedure manual and specifically, the “Falling Star Program” which outlines the measures the nursing home was to take to prevent falls.

Azalea Villa’s failure to comply with the OBRA regulations and its own policy and procedure was a cause of its failure to prevent Mr. D’s ninth fall in six months and resulted in his left hip fracture.

Plaintiff will also point out to this panel that there are multiple genuine issues of material fact which may preclude this panel from reaching a decision.  As part of its duty and in considering the evidence, this panel will be instructed that one of the decisions it can reach is that the case contains a “material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.”[4]  Plaintiff will show that the facts which are not disputed are enough to support an opinion in his favor.  However, at the same time, plaintiff recognizes that there are substantial unresolved issues of fact which may weigh into this panel’s decision-making process.  Out of an abundance of caution, plaintiff will highlight these genuine issues of fact for the panel.

FALL HISTORY

When Mr. D was admitted to Azalea Villa February 15, 2003, his admitting diagnosis was organic brain syndrome nos, dysphagia, hypertonicity of bladder, debility [sic] nos.[5]  Mr. D had been living at home prior to this admit.

An MDS summary for Mr. D performed March 19, 2003 critiqued his physical functioning.  In terms of locomotion it was noted he required “limited assist-resident does more than staff.”  By April, however, the MDS summary for his physical functioning noted his locomotion required “supervision”.  His MDS summary for physical functioning noted that he required supervision with locomotion again in May, June and July.[6]

Some, but not all of Mr. D’s nurses recognized that Mr. D had an unsteady gait and was a high risk for falls.  Director of Nursing, Ernestine Epperson, gave the following deposition testimony on the issue:

“Q Can you tell me about Mr. D’s ability to ambulate?

W Well, he could ambulate, but he was not safe ambulating.  He had a wheelchair and he had a walker, which he would get up alone and ambulate without the walker and the wheelchair.

*  *  *  *  *  *

Q Was Mr. D at risk for falls?

A Yes.”[7]

LPN Christy Renninger had similar observations:

“Q Do you remember Mr. D?

A Yes.

Q Can you describe what kind of resident he was?

A He was confused at times.  He was able to talk and he would ambulate, but he was kind of unsteady at times.  Perfectly friendly.”[8]

These witnesses’ observations were borne out by a Fall Risk Assessment performed on Mr. Domingue as a part of his MDS.  On February 13, 2003 he scored a 9 and later, on April 20, 2003 he scored an 11.  According to the Fall Risk Assessment form, a score of 10 represents a “HIGH RISK” for falls.[9]  Notably, this Fall Risk Assessment was inaccurately completed in May.  Section B noted a score of 2 for having “one-two falls in the past three months.”  More accurately, Mr. D had seven falls in the past three months which would have given him a “4” in this category and a total score of 13.

The best evidence of Mr. D’s difficulty ambulating came from the number of falls he suffered.  Attached herewith as Exhibit “I” in globo are incident reports for the nine falls in his six-month residency.  These include falls on March 1, 2003, March 9, 2003, again on March 9, 2003, March 10, 2003, again on March 10, 2003, March 21, 2003, April 26, 2003, July 28, 2003 and the final fall of August 17, 2003.  In reviewing the incident reports this panel will note that most of the falls occurred the exact same way.  Mr. D got out of his wheelchair unassisted.  These incident reports establish a pattern indicating how and why Mr. D fell.  As will be discussed later in this paper, Azalea Villa was required by both federal law and its own policy and procedure manual, to investigate and search for this pattern.  It never did.

The final documentation to be discussed regarding Mr. D’s potential for falls is his care plan.[10]  Plaintiff has numbered this care plan on the bottom right-hand corner pages 1 through 10 using a number inside a circle.  At Page 10 Mr. D’s problem is identified as “Trauma Potential for Falls”.  This panel will note the problem onset date as February 27, 2003.  This means the problem was recognized on admission because federal law requires, and the nursing home usually takes, two weeks to develop its care plan for a new resident.  In looking closer at Page 10 of this care plan, this panel will observe that there is no mention of Mr. D’s nine subsequent falls.  Nor is there any notation of any assessments or interventions taken to prevent these falls.  This care plan is inadequate and Azalea Villa breached the standard of care required for providing adequate care plans to its residents.  This issue will be addressed in more detail in the next section of this brief.

DUTY TO PREVENT FALLS

This panel is no doubt aware that nursing homes are heavily regulated by both state and federal law.  As mentioned previously, the federal laws are codified in the Omnibus Budget Reconciliation Act (OBRA).  OBRA regulations deal with many specific areas of nursing home care and conduct.  Two of these, proper care planning and prevention of accidents, are relevant to this case.  These OBRA regulations establish the standard of care in a nursing home.

In addition to the OBRA regulations, Azalea Villa maintained its own policy and procedure manual which dealt specifically with the issue of falls and particularly, residents who were at risk and/or had repeated falls.  Azalea Villa’s policy and procedure to prevent falls was called “Falling Star”.  Azalea Villa failed to follow its own policy and procedure contained in the Falling Star program for Mr. D.

Both the OBRA regulations and the Falling Star program prevent falls by properly assessing the patient’s risk, identifying the factors which lead to falls, informing employees on these issues and finally, evaluating and revising as necessary.  This was not done for Mr. D.  Because it was not done, federal law requires, and this panel must presume that had it been done, Mr. D’s fall was preventable.[11]

1.  THE CARE PLAN

The OBRA regulation regarding care plans is found under 42 CFR § 483.20(k).  It reads as follows:

“The nursing home must develop a comprehensive care plan for each resident that includes objectives and timetables to meet their residents’ medical, nursing and mental and psychosocial needs that are identified in the comprehensive assessment.  The care plan must describe the following – (i) the services to be furnished to attain or maintain the resident’s highest practicable physical, mental, and psychosocial well-being as required; and (ii) any services that would otherwise be required under § 483.25 but are not provided due to the resident’s exercise of rights under § 483.10 including the right to refuse treatment under § 483.10(b)(4).”

§ 483.20(k)(1) lists specific “probes” used to determine whether the nursing home is meeting its requirements of a properly constructed care plan.  These are as follows:

• Does the care plan address the needs, strengths and preferences identified in the comprehensive resident assessment?

• Is the care plan oriented towards preventing avoidable declines and functioning or functional levels? 

• How does the care plan attempt to manage risk factors?

• Does the care plan build on resident strengths?

• Does the care plan reflect standards of current professional practice?

• Do treatment objectives have measurable outcomes?

• Corroborate information regarding the resident’s goals and wishes for treatment in the care plan by interviewing residents, especially those identified as refusing treatment.

• Determine whether the facility has provided adequate information to the resident so that the resident was able to make an informed choice regarding treatment.

• If the resident has refused treatment, does the care plan reflect the facility’s effort to find alternative means to address the problem?

Referring to Azalea Villa’s care plan for Mr. D previously referenced as Exhibit “J”, this panel will note that it does not meet the standards set out under the federal law.  Mr. Domingue’s care plan (Exhibit “J”, P. 10), does little more than acknowledge the risk he has for falls.  In reading the “approaches” in the care plan, all of these deal with Mr. D’s use of psychotropic medications and the potential for falls these create.  There is no mention of Mr. D’s unsteady gait nor of his propensity for getting out of his wheelchair unassisted.  Mr. D’s subsequent falls are not listed.  In sum, there is no way any caregiver could review this care plan and determine that Mr. D had a potential for falls caused by an unsteady gait and getting out of his wheelchair without assistance.

The value of the care plan to the resident’s treatment at the nursing home cannot be overstated.  This is why our federal law puts so much emphasis on the plan.  How could Azalea Villa possibly hope to prevent Mr. D’s falls with a care plan this inadequate?

The information in the care plan is supposed to be used by Mr. D’s nurses and CNAs.  Presumably, the LPNs would review the care plan and provide or discuss the issues contained in it with the CNAs.  Many of Mr. D’s LPNs had never seen his care plan and knew little about his high risk for falls.  Joanna Nguyen was one of these LPNs.  She testified at Page 9 of her deposition as follows:

“Q Have you ever reviewed Mr. D’s care plan?

A Uh-uh (no).

Q That’s no?

A No.”[12]

LPN Christy Renninger was asked the same question and indicated that she was confused about what a care plan was altogether.  Her testimony in part was as follows:

“Q Did you ever review Mr. D’s care plan?

A No, I don’t — ”[13]

Ms. Renninger went on to explain that she did not know why Mr. Domingue was at risk for falls.[14]  Ms. Renninger did not know Mr. D had fallen nine times in six months.[15]

OBRA regulation 42 C.F.R. § 483.75(f) states, “The facility must ensure that nurses’ aides are able to demonstrate competency in the skills and techniques necessary to care for residents’ needs, as identified through resident assessments and described in the plan of care.”  Obviously, in the case of  the plaintiff, where his LPNs were unfamiliar with his plan of care, his needs or his assessments, this information was not getting to the nurses’ aides.  This lack of proper documentation and information-sharing demonstrates a breach in the standard of care.

One more example of this breach can be found by examining Mr. D’s Flow Sheet Record for August, 2003.[16]  The flow sheet contains the information the CNAs are to use in carrying out their day-to-day care of the residents.  It is often the only information the CNAs get regarding a resident’s particular needs.  The flow sheet for Mr. D contains two sections, one noting “Walks with walker with assistance when not feeling weak.  The other reads, “Up in wheelchair on days he feels weak.  Notify nurse of weakness.  He is able to propel self in wheelchair.”  Notably absent is Mr. D’s propensity for getting out of his wheelchair without assistance and his need for supervision in this regard.

Finally, there is the Falling Star policy.  There is some dispute about whether Mr. Domingue was ever an actual participant in the Falling Star program.  Some employees have testified they believed he was; others do not.  Given the fall history, there is no question Mr. D was a candidate for the Falling Star program.  But given the high number of falls and the very little intervention taken to prevent them, it is unlikely Mr. D was ever recommended to the program.[17]  If in fact he was a participant in the Falling Star program, then that should have been noted on his care plan and the interventions required by the Falling Star program documented as well.

2.  DUTY TO PREVENT ACCIDENTS

“The facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents.  The facility must ensure that the resident environment remains as free from accident hazards as possible.  ‘Accident hazards’ are defined as equipment or devices that are defective, poorly maintained or not used in accordance with the manufacturer’s specifications.”  This federal regulation sets out the nursing home’s duty to “supervise” and to provide “assistance devices” to prevent accidents.  Azalea Villa failed to meet this duty for Mr. D.  Mr. D’s fall was not witnessed but this is only one example of the lack of supervision.  The duty to supervise encompasses not only watching out for the residents on a day-to-day basis, but keeping the nursing home employees informed as to the residents’ needs.  This includes keeping the employees informed about where and when the resident is likely to be harmed.  For the reasons discussed beforehand, Azalea Villa breached the standard of care in this regard.

Similarly, “assistance devices” to prevent accidents were never properly explored.  One example of this is the use of a lap belt.  All Azalea Villa employees have testified that lap belts were commonly used in their facility.  As this panel may be aware, one common use of a lap belt is as a reminder to residents not to get out of their wheelchair without assistance.  In deposition testimony, Azalea Villa nurses noted that it is their duty to recommend to the doctor the use of lap belts when necessary.  They also admitted that this was never done for Mr. D.  Some of these employees, perhaps as a defense mechanism, disregarded the idea of a lap belt.  They stated that a lap belt would not have worked for Mr. Domingue.  It was not for these nurses to decide, however, whether the lap belt would have worked.  This was an issue for Mr. D’s doctor.  The nurses had a duty to bring this issue to the attention of Mr. D’s physician.  They did not.  They breached the standard of care in failing to do so.  It is not for this panel to now decide in hindsight whether a lap belt would have worked or not.[18]  This panel need only decide whether under the circumstances the nursing home should have recommended different assistance devices, including the lap belt, to Mr. D’s physician.  The conclusion is inescapable that they should have.  They did not.  Therefore, they breached the standard of care.

3.  THE FALLING STAR PROGRAM

Azalea Villa maintains that a policy and procedure to prevent resident falls was instituted in roughly April of 2002 titled the “Falling Star Program”.  Attached herewith as Exhibit “M” is a copy of documentation provided by Azalea Villa which purports to outline this program.  It is titled “Carerise Fall Prevent Program”.  It’s apparently pulled directly from the Azalea Villa policy and procedure manual and is numbered pages 14 through 19.  The intent of the program is described at Page 14 and reads as follows:

“The facility prevents accidents by providing an environment that is free from hazards over which the facility has control.  The facility identifies each resident at risk for accidents and/or falls, and adequately plans care and implements procedures to prevent accidents.”

There are twenty-two measures under this program the facility is directed to undertake in order to prevent falls.  Paragraph 3 Page 15 of the program requires that resident fall risk factors be reassessed on a regular basis and the care changes be made according to the applicable laws and regulations.  Azalea Villa’s DON, Ernestine Epperson, has testified that these requirements were not being met.  She testified there were no meetings ever to discuss falls for the plaintiff.[19]  Ms. Epperson testified that notes on how Mr. D fell and how to prevent future falls were never compiled.[20]

Paragraph 5, Page 15 of the program required that the resident’s care plan reflect any changes in the resident’s fall risk factor.  As per this paper’s earlier discussion regarding the care plan, this was not done.  DON Epperson admitted this shortcoming in her deposition as well.  She noted that Mr. D’s unsteady gait and issues of ambulating without assistance (non-compliance) should have been contained in his care plan.[21]  It was not.

Paragraph 7, Page 16 of the program required the direct staff to be able to verbalize the resident’s specific mobility needs and devices.  As was mentioned before, Mr. D’s LPN, Christy Renninger, did not know why Mr. D was at risk for falls.[22]  Interestingly, Ms. Renninger did not know whether Mr. D was a member of the Falling Star program or not.[23]  When LPN Debra Anderson was asked whether the plaintiff was at risk for falls and/or a member of the Falling Star program she indicated she was uncertain and testified “I think.”[24]  According to Ms. Anderson, before Mr. D’s ninth fall August 17, 2003, “. . . he had fallen like maybe once before . . .”[25]

Paragraph 19 Page 17 of the program required that residents be routinely evaluated for the need for restraints.  As was mentioned before, a lap belt which would serve as a reminder to Mr. Domingue was never attempted.  According to Azalea Villa’s records, a “pre-restraining assessment” was performed on him February 13, 2003.[26]  That assessment called for a subsequent evaluation in May.  This was never performed.  Azalea Villa’s records contain no other assessment.  Obviously, a lot changed between the initial assessment on February 13, 2003 and May 12, 2003.  Mr. D had seven falls in that time span.  Azalea Villa breached its own program regarding evaluation for restraints.  This panel should not fall for self-serving and disingenuous arguments that a lap belt would not have worked.

Paragraph 21 Page 18 requires the facility to identify those residents at high risk for falls by “Consistent method that the direct care staff is able to verbalize knowledge of (e.g., ribbons, room door signs, color-coding, or armbands, etc.).”  LPN Anderson has testified that Mr. Domingue had no such identifiers.[27]  LPN Renninger did not know whether Mr. D had any identifier.[28]

Paragraph 22 Page 18 requires the facility to have an assessment and assurance committee required to meet and review issues regarding the residents on the fall program and to “Develop and implement plans of action to correct identified quality deficiencies including, but not limited to trends and fall incidents:  time of day, location, staff/device involved, day of week, medications, activity involved.”  As was mentioned before, DON Epperson testified that no such meetings ever took place.[29]  No such information was ever compiled.[30]  LPN Anderson testified she never participated in any fall prevention meetings.[31]  Likewise, LPN Nguyen never participated in any fall prevention meetings.[32]

Obviously, Azalea Villa was not following its own policy and procedure for fall prevention.  This is a breach of the standard of care.

Plaintiff takes this opportunity to point out that Azalea Villa’s administrator, Norma Dupre, has given contradictory testimony.  As an administrator, she is not directly involved in patient care.  However, she is under the belief that Azalea Villa did hold fall meetings to discuss specific patients.[33]  She testified that the plaintiff “must have been” discussed at these meetings.[34]  Interestingly, she testified that patterns of falls go into the resident’s care plan.[35]  Ms. Dupre’s testimony can be easily dismissed.  She is contradicted by the witnesses mentioned above, not the least of which was her own director of nursing.  She is also contradicted by the Azalea Villa care plan for Mr. D which contains nothing regarding his pattern of falls.  Ms. Dupre’s testimony is useful in showing this panel what the nursing home was supposed to be doing according to its administrator.  Again, this demonstrates a breach in the standard of care.

THE MYSTERIOUS SECOND CARE PLAN

Plaintiff previously identified his care plan and attached it as Exhibit “J”.  This is the care plan first provided by the defendants to the plaintiff in its entirety.  It contained only fourteen pages.  This care plan was attached as an exhibit in a court filing defendants made to the 16^th Judicial District.  After this lawsuit began, and after plaintiff requested an entire copy of the Azalea Villa chart during discovery, a second care plan turned up.  This second care plan is identical to the first except that it contains three additional pages.  Those three additional pages are attached herewith as Exhibit “Q”.  They are hand-numbered pages 15, 16 and 17 for the panel’s convenience and to avoid confusion.

Page 15 deals with the problem of diabetes mellitus.  Diabetes was an issue addressed during Mr. D’s hospitalization for his hip fracture.[36]  Page 16 addresses falls.  Page 17 addresses delirium and increased confusion.  It is more than just a coincidence and highly suspicious that the last three pages of this care plan which turned up only after discovery and which were not included in the nursing home’s original court filings, address the three specific issues involved in his fall and hospitalization in August, 2003.

Looking at Page 16, one would have to question why the nursing would identify Mr. D’s risk for falls at Page 10 and then again at Page 16.  Plaintiff must point out, however, that even if taken as true, this care plan points to more substandard care at Azalea Villa.  Page 16 does list some of Mr. Domingue’s accidents, but not all of them.  Three are missing.  Further, there is no explanation as to how the accidents took place for purposes of establishing a pattern.  “Approaches” listed on Page 16 are vague and do nothing more than mention the Falling Star program.  There is no indication to the staff on what should be done to prevent falls.  This page does little more than simply attempt to identify Mr. D to the employees as someone who may fall.  These approaches, if true, were not working because the employees were unaware of issues like whether he was a member of  the Falling Star program, how often he fell, what caused his falls, etc.  It goes without saying that the best care plan in the world means nothing if it was not being implemented properly.

THE NURSING HOME’S EXCUSES AND PANEL PREJUDICE

Plaintiff will not have an opportunity to review the defendant’s position paper before it is submitted to this panel.  However, certain defenses can be anticipated.  The first of these will be for Azalea Villa to argue “We can’t prevent all falls.”  In response, plaintiff would point out that while it is true it cannot, this fact alone does not relieve it of liability.  Nursing homes have a duty to prevent accidents.  This duty encompasses the obligation to properly assess the patient’s risk for falls, care plan that risk, implement the care plan, evaluate the outcome of that plan, and revise the care plan as necessary.  This duty is encompassed in not only the federal regulations but in Azalea Villa’s own policy and procedure manual.  Azalea Villa was not doing this.  Apart from documenting his falls in the incident reports and noting his risk for falls in the care plan, Azalea Villa took no affirmative action as required in the federal regulations and its own policy and procedure manual, to prevent further falls.  Unless and until Azalea Villa can step forth with evidence that it took the appropriate measures as required, it cannot argue that “all falls are not preventable.”  In other words, show us that you did what you were supposed to do to prevent falls and if you did not, you breached the standard of care.  You cannot now whine about how difficult it is to prevent falls when you did little or nothing to prevent them in the first place.

Azalea Villa is likely to argue that Mr. D has a “right to fall”.  This is a very popular argument among nursing homes and quite frankly, one I’ve heard panel doctors use before.  It is based on a gross misunderstanding of the law.  Nursing homes often refer to the Patient’s Bill of Rights as the basis for the resident’s right to hurt themselves.  Nothing could be further from the truth.  While a resident does have the right to refuse treatment, as we all do, if the resident’s refusal is likely to result in his or her harm, this must be reported to the doctor.  Further, it must be documented.[37]  Federal law requires that a resident not be accommodated if the individual’s health and safety are endangered.[38]  Nothing in Mr. D’s medical records would indicate that the nursing home ever assessed Mr. D for non-compliance regarding ambulating without assistance.  He was never counseled on the issue.  Although some witnesses have testified he was non-compliant and others have described him as hard-headed or ornery, there is no documentation in the records regarding this issue and his propensity for falls.

Further, Mr. D was interdicted which means in terms of restraints, his curator/daughter, Valerie Moore, had the right to make these decisions.  Valerie Moore was never counseled, contacted or advised about the potential use of restraints.

These arguments play on the natural prejudices of this panel.  As physicians, you are protective of your occupation as any other person would be of theirs, including this attorney.  By extension, your occupation includes nursing homes and more specifically, the individuals who render care in those homes.  Further, because you see so many elderly residents who have fallen and suffered hip fractures, you are cynical about any facility’s ability to prevent these.

This panel must put aside those natural prejudices and examine Mr. D’s case alone.  Did Azalea Villa follow the federal OBRA regulations and its own policy and procedure?  We have demonstrated they did not.  This is a breach of the standard of care.  End of argument.

One more defense which is anticipated and should be mentioned is the “spontaneous fracture” argument.  Nursing homes are always fond of arguing that despite the evidence of trauma, this fracture was caused by the aging process (osteoarthritis, etc.), and not the accident for which they are responsible.  In this case, Azalea Villa has fuel for this fire because of the one day delay between the fall and the discovery of the fracture.  Do not be suckered into this ridiculous argument.[39]  The records reflect that Mr. D was put to bed after his fall.  He was given medication and presumably, slept all night.[40]  He complained of pain the first thing the very next morning.  His nurse on duty, Joanna Nguyen, has testified that nothing happened to him between the fall and the time of his x-ray.[41]  She was asked specifically,

“Q Is there anything that happened between August 17 and the time of his x-ray that would have been another explanation for him fracturing his hip?

A No.”

This is a non-issue.

MATERIAL ISSUES OF FACT

Plaintiff has presented this panel with more than enough evidence to support his position that (a) Azalea Villa breached the standard of care regarding its duty to prevent his fall, and (b) this fall caused his left hip fracture.  As was mentioned early on in this brief, however, there are several unresolved issues of fact.  Most of these have been created by Azalea Villa through its conflicting witness testimony and its less than scrupulous recordkeeping.

Issue No. 1:  Was the Falling Star program in place and was the plaintiff a participant?  Apart from the suspicious additional care plan pages, there is nothing to indicate Mr. D was a member of the Falling Star program.  Despite the requirement, no independent documentation was kept.  Defendant’s witnesses contradict each other on whether he was a participant.

Issue  No. 2:  Was the care plan altered?  As was mentioned above, the first version of this care plan to be filed with the court and the second version to be provided during discovery are different.

It is not the duty and, in fact, this panel is prohibited from deciding issues of fact.  This panel must only decide whether Azalea Villa breached the standard of care and whether this breach caused injury.  If it cannot reach these decisions without resolving the aforementioned issues, then it must advise the attorney chairman of this fact.  In this case, a “no decision” should be entered wherein the panel finds neither for the plaintiff nor the defendant  based on the unresolved issues of material fact.

CONCLUSION

Azalea Villa had a duty to intervene and attempt to prevent Mr. D’s falls.  Federal law and its own policy and procedure established the measures it was required to take to meet this duty.  Azalea Villa did not follow these measures.  Failure to follow these measures is a breach of the standard of care.  As a result, Mr. D fell for the ninth time in six months and fractured his hip.

Defendants will argue that these measures would not have worked anyway.  This is a question for a jury, not for this panel.  This case is not unlike the case of a person who’s had the discovery of cancer delayed by a misread x-ray.  In that case, the radiologist either did nor did not misread the x-ray.  The misread was either a breach in the standard of care or it was not.  Arguments about whether how much longer that patient would have lived with an earlier diagnosis, are beside the point.  The question is simply, did the doctor breach and would the patient have been better off had he not?

In Mr. D’s case, did the nursing home breach by not implementing the proper measures according to federal law and its own policy and procedure?  It did.  Would Mr. D have been better off had they not breached this standard of care?  He would.

Plaintiff asks this panel to put aside its natural prejudices and to put aside its natural cynicism.  Let this case serve as an example to Azalea Villa and all nursing homes that if you fail to follow the law and your procedure, you will be held accountable.

RESPECTFULLY SUBMITTED,

GUILLIOT & ST. PÉ, LLC

________________________________

KENNETH D. ST. PÉ

La. Bar Roll No. 22638

428 Jefferson Street

P.O. Box 2877

Lafayette, Louisiana 70502

(337) 232-8177