Falls are dangerous for everyone. They are the number one reason for emergency room visits. In the elderly, falls can be even more serious. Nursing homes, rehabilitation hospitals and hospitals have a duty to prevent falls. The case below involved that duty and explains the standards that apply.
BRIEF FACTUAL HISTORY
Plaintiff was admitted to defendant’s rehabilitation hospital, Rehabilitation Hospital of DeQuincy, on or about February 19, 2004. He was admitted post-hip joint replacement on orders from Dr. David Steiner. Mr. M was 88 years old on admit. On March 3, 2004 Mr. M re-fractured his surgical hip after falling from his bed. He was unattended and unsupervised at the time of his fall. Mr. M wore a personal alarm at the time of his accident which failed to sound. He was supposed to be watched by a TV monitor but was not.
Rehabilitation Hospital of DeQuincy was negligent in failing to properly monitor and supervise Mr. M. It was further negligent in failing to use the bed alarm properly and/or in having a defective bed alarm.
The patient admission form and initial assessment of Mr. M to the Rehabilitation Hospital of DeQuincy are attached herewith as Exhibit “1”. Among Mr. M’s many diagnoses are the following: rehabilitation, aftercare from joint replacement, status post-hip replacement, severe malnutrition, COPD, chronic renal failure with hypertension, anemia, Alzheimer’s disease with behavioral disturbances, atherosclerotic cardiovascular disease, benign prostate hypertrophy, anticoagulation. He needed “maximal assistance” w/transferring.
While at the rehabilitation hospital, Mr. M was followed by Dr. Steiner and by Dr. Jalal Joudeh. A copy of their progress notes is attached herewith as Exhibit “2”. Dr. Steiner noted on February 19, 2004 that Mr. M was doing well following his left total hip replacement and that he was able to stand and walk on the hip reasonably well. However, Mr. M was experiencing confusion which Dr. Steiner noted was “. . .most likely secondary to the anesthetic.” (Ex. 2). Dr. Joudeh’s progress note of February 25, 2004 noted continued confusion as well as agitation requiring some sedation. On February 26, 2004 Dr. Steiner noted that Mr. M was doing “quite well”. Mr. Maddox was moving around in his wheelchair independently and ambulating one hundred fifty feet with a rolling walker with minimum assistance. Dr. Steiner stated that “Overall his progress is good.” Dr. Joudeh noted February 28, 2004 that “Mr. M continues to improve” but, “he does have confusion on and off.” Dr. Joudeh states that he is trying to increase Mr. Maddox’s Alzheimer’s medication.
Dr. Joudeh also notes continued improvement on March 1, 2004. However, there were continuing episodes of confusion. The last progress note before his fall was February 2, 2004. Dr. Steiner states that “Mr. M is doing quite well.” But with regard to his mental status notes “He is still a little confused at times.”
On March 1, 2004 the speech pathologist noted that Mr. M was “confused and combative.” That same progress note mentions that Mr. M’s family had to be called in order to calm him down and that his family stated his behavior was “out of character.” (Speech pathology progress note 3/1/04 attached as Exhibit “3”.
The history and physical for Mr. M’s admit on 2/19/04 is attached herewith as Exhibit “4”. This was prepared by Dr. Joudeh. The discharge summary of Dr. Steiner from March 3, 2004 following the accident is attached herewith as Exhibit “5”. Dr. Steiner notes “During an unattended period he got out of bed and fell. X-rays revealed a periprosthetic fracture. He was discharged and referred back to Byrd Hospital.”
In sum, during his stay at defendant’s facility, Mr. M was debilitated, sickly and mentally confused. He was a high risk for injury and particularly for falls. He required constant supervision. He was admitted to defendant’s facility for this reason.
The facts of the accident are somewhat sketchy because the fall was unwitnessed. The best evidence of what happened comes from the nurses’ note, an incident report, and the deposition of Assistant Director of Nursing, Debbie Buxton (Nurses’ note of 3/2/04 attached as Exhibit “6”, incident report attached as Exhibit “7”, deposition of Debbie Buxton attached as Exhibit “8”).
The nurses’ notes for the day of the accident reads in part as follows:
“2000 [hrs] Pt in bed, a/aoxt; shallow breather, lungs diminished, heart irreg, 3+ edema, L pedal pulse weak, assess noted, stable to L hip d/c’d [____ increased], PA on. 2200 [hrs] Adavin admin for rest. 0130 [hrs] Dr. Steiner ____ cpt. 0240 [hrs] pt found on floor. PA off, doctor notified. 0300 [hrs] given Percocet for c/o L thigh pain nn 10/10 bed alarm applied, rails [up], 0400 [hrs] pt in bed, resting, resp unlabored, NAD. 0530 [hrs] unsuccessful attempt notifying daughter. 0600 [hrs] pt in bed, resting, resp unlabored, NAD.” (See Ex. 6).
This panel should note that “PA” refers to patient alarm. It will further note that when Mr. M was found on the floor the patient alarm was off. The Assistant Director of Nursing, Debbie Buxton, has testified that “PA off” means off the patient (Buxton Depo., Ex. 8, p. 17). Beginning at page 16 of her deposition Ms. Buxton describes that the patient alarm cannot be turned off. She described that it consists of a badge attached to the patient with a string and a magnet on it. The magnet is then attached to the alarm itself which is placed on the bed behind the patient. Ms. Buxton’s version of the accident, however, is contradicted by the incident report completed for the accident by the defendants. (Previously identified as Ex. 7). This incident report titled “CONFIDENTIAL HOSPITAL OCCURRENCE REPORT PROPERTY OF HOSPITAL ATTORNEY” reads that “pt found on floor, c/o L thigh pain” and further that “PA not alarming, pt removes, assisted back to bed”. This panel will note that the incident report describes the patient on the floor with his bed alarm on but with the alarm not sounding. The patient then removes the bed alarm and is assisted back to bed.
Ms. Buxton also testified in her deposition that the side rails on Mr. M’s bed were up at the time of his accident. It was her opinion that Mr. M likely scooted off the end of the bed (Buxton Depo. Ex. 8, p. 18). Plaintiffs believe that this is the most likely scenario to explain how Mr. Maddox was able to get out of bed. If this is correct, and he did scoot himself off the end of the bed, it is important for this panel to note that this process would have taken a considerable length of time to accomplish given his physical condition. In other words, had he been properly supervised and monitored, someone should have seen him attempting to get out of bed in this manner.
THE DEFENDANT’S DUTY
The rehabilitation hospital had an affirmative duty to supervise Mr. M and prevent injury. They failed this duty and are unable to provide a reasonable explanation as to why they failed. This type of accident does not happen in the absence of negligence. Its occurrence alone is presumptive evidence of substandard care.
At the time of this accident the rehabilitation hospital was regulated under the rules of Medicare/Medicaid. Although the rehabilitation hospital is not a long-term care facility, this panel may find guidance in the Medicare/Medicaid rules established for long-term facilities and set out in the U.S. Code of Federal Regulations.
42 CFR § 483.25(h) reads as follows: “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 of 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 duty to “supervise” and to provide “assistance devices” to prevent accidents. Further, it establishes the duty to maintain equipment (i.e., bed alarms) and to use that equipment in accordance with the manufacturer’s specifications. The rehabilitation hospital breached these duties. Mr. M was not supervised at the time of his accident. His movements from the bed went unnoticed and the defendants cannot explain why his movements were not seen on the monitor. Further, the bed alarm did not sound and the defendants have failed to give any explanation as to why this device did not function properly.
42 CFR § 483.20(k) reads, “The nursing home must develop a comprehensive care plan for each resident that includes objectives and time tables 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 practical 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).” Again, while this federal regulation applies to long-term care facilities, it can provide this panel guidance on the appropriate standard of care for the rehab hospital. Compare the requirements of this federal regulation on care plans to the care plan in this case. This panel will note that the rehabilitation hospital’s care plan did not go far enough in addressing his needs. It was, at most, a boilerplate care plan or a computer-generated form made solely for the purpose of saying they had one. In other words, Medicare/Medicaid requires a care plan and the rehabilitation hospital generated this one.
The care plan for Mr. M does not properly address Mr. Maddox’s risk for falls due to confusion and/or medication. It contains little or nothing in terms of preventive measures to be taken. There is no mention of bed alarms in the care plan. There is no mention of video monitoring, there is no mention of routine bed checks. Clearly, the rehabilitation hospital was simply flying by the seat of its pants with regard to these issues and this was a direct cause of the accident.
THE DEFENDANT’S NEGLIGENCE
Beginning at page 25 of her deposition, Ms. Buxton explains that the rehab hospital did not have a fall prevention policy. It did, however, complete a fall risk assessment at the time of admission. Regarding this assessment Ms. Buxton testified as follows, “It says, in my opinion, he would be at risk for fall. Because he did have the inability or unwillingness to follow instructions related to safety measures. He was disoriented at times to person, place and time. He did have impaired visual acuity, and he was on narcotics and anti-hypertensions, which can make you at high risk for fall.” (Buxton Depo., Ex. 8, p. 26). The Patient Care Plan is attached herewith as Exhibit “9”. This also notes Mr. M had an injury potential due to dementia. Despite this obvious risk, the records reveal that Mr. M was not properly supervised at the time of this accident. According to the nurses’ notes of March 2, 2004 no one checked on Mr. M between 0130 hrs. and the time he was discovered on the floor at 0240 hrs.
Attached herewith as Exhibit “10” is the deposition of Assistant Administrator, Lisa Miller. At page 11 of her deposition Ms. Miller testified that the hospital had no fall prevention policy at the time of Mr. Maddox’s accident (Miller Depo., Ex. 10, p. 11). Ms. Buxton also testified that there was no fall prevention committee at the time of Mr. Maddox’s fall (Buxton Depo., Ex. 8, p. 30). Such a committee is very important when treating the elderly who are especially prone to falls. Both Ms. Buxton and Miller testified that the majority of the residents at their facility are over the age of sixty-five (Buxton Depo., Ex. 8, p. 11; Miller Depo., Ex. 10, p. 15).
Ms. Miller testified that a fall prevention policy was instituted after Mr. M’s accident (Miller Depo, Ex. 10, p. 11). As this panel knows, the elderly require a higher level of care and supervision. Fall prevention policies are used to meet some of these demands. For example, Ms. Buxton testified that after this accident, the hospital requires CNAs to check on patients every fifteen minutes and document same. Toileting programs should have been established and if necessary, the use of restraints considered. None of this was done for Mr. M.
In addition to the failure to monitor and supervise, there is the issue of equipment malfunction. Although it is unclear from the facts, we can assume that either Mr. M was able to remove the alarm without it sounding or that he was able to fall off the end of the bed without setting the alarm off. Under either scenario, it is apparent that the personal alarm was not working properly. It seems extremely unlikely that this debilitated patient would have been able to remove the alarm prior to getting out of bed; however, if this is what occurred then the alarm should have sounded while it was being removed. This activity should have been seen under proper monitoring.
If Mr. M was able to get out of bed with the alarm on him but without the alarm sounding, this is a malfunction which points to the rehabilitation hospital’s failure to properly maintain and/or use its equipment.
GENUINE ISSUE OF FACT
This panel will be instructed by the attorney chairman that pursuant to the Louisiana Medical Malpractice Act it can reach one of three decisions. It can (1) find the evidence supports the conclusion that the defendant failed to comply with the appropriate standard of care; (2) find the evidence does not support the conclusion that the defendant failed to meet the applicable standard of care; or (3) find that there is a “material issue of fact not requiring expert opinion, bearing on the liability for consideration by the court.”
The plaintiffs believe that the issue surrounding whether the personal alarm was on or not creates “a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.” In other words, this panel will have to reach a factual conclusion about whether this bed alarm was on Mr. M at the time of the accident and did not sound or whether it was removed by Mr. Maddox before he fell from the bed. Plaintiffs believe that the defendants failed to meet the appropriate standard of care regardless of the outcome of this issue. (I.e., he was not properly supervised and monitored). However, if this panel feels that the issue is crucial to making its decision, then it must decide that there is a “material issue of fact not requiring expert opinion.” The panel cannot make this factual determination.
To say it again, plaintiffs feel the evidence supports a finding that the defendants failed to properly assess, monitor and supervise Mr. M and that this was a breach of the appropriate standard of care. Plaintiffs also feel that the defendants breached the standard of care in maintaining its equipment because the monitor should have sounded whether Mr. M removed the alarm before getting out of bed or whether he fell out of bed with the alarm. However, if this panel feels that the defendants were not negligent in failing to supervise and this panel feels that the issue of the personal alarm being on or off Mr. M is the key one, then it must find that there is a genuine issue of material fact regarding whether that alarm was removed by Mr. M before or after his fall.
Mr. M required constant supervision and was a high risk for fall and injury following his surgery. He was admitted to defendant’s facility because of this. Defendants failed to properly assess his fall risk, failed to properly plan for his fall risk, and failed to carry out the monitoring and supervision promised. Mr. M was injured as a result.
Plaintiff fears that this panel may be inclined to brush this accident off as simply an old man doing what he wanted, and therefore, unpreventable. But, this accident was easily preventable had the defendants followed through on the supervision and monitoring they promised and checked on the bed alarm’s functioning as well.
GUILLIOT & ST. PÉ
(A Professional Law Corporation)
KENNETH D. ST. PÉ
La. Bar Roll No. 22638
428 Jefferson Street
P.O. Box 2877
Lafayette, Louisiana 70502
 This second scenario is the one contained in the defendant’s incident report (Ex. 7).