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Can I Sue an Assisted Living Facility for a Fall or Injury?

Can I Sue an Assisted Living Facility for a Fall or Injury?

Assisted Living Facilities Are Responsible for Falls

Case Study – Facility Fails to Respond, 83 Year Old  Left Alone on Floor

A judge and jury are likely going to have to decide if the death of James Turner, Jr. was due to neglect. Mr. Turner died in October of 2018 while at the Town Village Vestavia Hills assisted living facility in Vestavia Hills, Alabama.

According to his family, residents of the assisted living facility are supposed to check in electronically every morning by 10:00 am. If a resident doesn’t check in, staff are expected to visit or call the resident to make sure they are okay.

On September 30th of last year, Mr. Turner never checked in.  A neighbor heard unusual noises from his apartment and even alerted staff about her concerns. No one responded, nothing was done. It wasn’t until 6:00 pm the following day that Mr. Turner’s son found his father near death. He had fallen to the floor and was unable to get up.

He later died at the hospital.

Falls are common in nursing homes and among the elderly in general. Many patients die when they are unable to get up or summon assistance. But are assisted living facilities legally responsible? That is the question we answer in this article.

Help! I’ve Fallen and Can’t Get Up

The TV ads from the 1980’s made the phrase “Help I’ve fallen and can’t get up” famous. It is still used today by a medical alert company. Unfortunately, that phrase is deadly accurate.

According to the National Council on Aging, one in four Americans over the age of 65 will fall each year. Every 11 seconds, one of those falls requires an emergency room visit. In fact, the NCOA says that falls are responsible for 2.8 million ER visits per year. And every 19 minutes, one of those falls is fatal.

In nursing homes, falls are mostly preventable. Nursing homes can be held legally responsible for pain and suffering and other damages when a resident falls.

Mr. Turner was not receiving skilled nursing services. Like many older Americans, he was in an assisted living facility that still afforded him privacy and recognized his independence. Having an electronic monitoring system, however, when a monitor detects a problem. Ditto when a neighbor reports a problem or hears strange noises.

It appears that Town Village Vestavia Hills failed in its duties to Jim Turner. Even if his death was inevitable – the courts and medical experts will sort that out – he should not have had to suffer alone and on the floor for days.

Even when falls aren’t fatal, and many are, elderly patients suffering from falls often suffer huge quality of life impacts. While most falls result in minimal injury, approximately 30 percent of adults age 65 and older suffer serious injury from falls, particularly hip fractures and head injury. Of those hospitalized for a hip fracture 40% never return home or live independently again, and 25% will die within one year.

In nursing homes and hospitals, falls are almost always preventable. There are few valid excuses for a patient injured in such a facility. While assisted living facilities have fewer obligations to keep prevent falls, they become responsible if they ignore calls for help or electronic monitoring systems.

Assisted Living Facilities and Fall Injuries

The scope of services provided by assisted living facilities – ALFs – varies widely from place to place. Generally, these places offer to:

  • supervise medication dispensing
  • provide meals for residents
  • help with daily living activities
  • provide housekeeping and linen changes
  • provide transportation to medical appointments
  • plan social events

The legal requirements and regulations for these facilities vary widely from state to state and depend on what services they provide.

An assisted living facility is probably liable if a resident slips and falls on a wet floor in the dining hall or common area or on unshoveled snow on an outdoor walkway. Unless their housekeeping or general hosuing contract says otherwise, they probably are not liable for a fall in the resident’s own apartment.

That liability could change, however, if the facility says it will check on residents daily and fails to do so.

Assisted living facility best practices for fall prevention include:

  • Keeping common areas clean and free of obstructions and slippery falls
  • Making sure bathroom floors aren’t wet or slippery
  • Having handrails in all bathrooms and in common area walkways
  • Having an electronic alerting system so patients can summon help if they fall within their own apartment
  • Having adequate staffing to monitor for falls and offer an immediate and trained response should a fall occur
  • Assure that patients required to use walkers or canes do so

Other Differences Between Assisted Living Facilities and Nursing Homes

In the context of liability for falls, we have already discussed the primary difference between a nursing home and an assisted living facility. Nursing homes and hospitals have a higher duty of care although ALFs can still be held responsible, particularly for falls in common areas and when the facility fails to respond to a distress call.

Another major difference is insurance. Most states require skilled nursing facilities to carry liability insurance but not all states require assisted living facilities to have insurance. That is something every family should ask before moving a loved one into such a facility.

There is also a difference between assisted living facility’s and nursing home’s obligation to report falls to state regulators. Assisted living facilities generally don’t have an obligation to report or if they must report, their duty is limited to falls occurring in common areas.

Emeritus Senior Living – a Case Study in Preventable Assisted Living Deaths

Emeritus Corporation (doing business as Emeritus Senior Living) was a nationwide provider of assisted living facilities, skilled nursing homes and memory care. It ceased operations and was acquired by Brookdale Senior Living in 2014 after being hit with a $23 million punitive damage award.

PBS did a special investigation of Emeritus in 2013 called Life and Death in Assisted Living. The company was constantly accused of elder abuse and neglect including these high profile cases:

  • In 2009 in Georgia, 91-year-old former George McAfee, a former Chicago Bears running back, swallowed dishwashing detergent after an employee failed to secure a container that contained bleach. He died 11 days later of sodium hydroxide poisoning. McAfee suffered from dementia at the time he drank the liquid.
  • In 2011 in Colorado, 79-year-old Herbert Packard Jr. was killed by another resident of his facility who had been admitted with a diagnosis of traumatic brain injury (TBI). The facility knew that the resident had violent tendencies. That resident attacked Packard, leaving him with a broken hip and bleeding in his brain. Packard died shortly thereafter from those injuries.
  • In 2010 in Mississippi, 83-year-old dementia sufferer Merle Fall died when she fell from a second story-window in another Emeritus assisted living facility. Reports say she was agitated on the night of her death, yet no one provided her additional supervision or transfer to a memory care unit.
  • In 2013 a resident of Brookdale (which acquired Emeritus) was sexually assaulted by another resident at an Illinois facility.
  • In 2014, a resident of a Michigan facility walked out an unmonitored back door during the dead of winter. The door automatically locked making it impossible for her to get back in. She was found dead in the snow the next morning. She froze to death just a few feet from the door.

The number of preventable deaths led to the feds investigating the company in 2014. The company downplayed the investigation and called it routine. The investigation apparently looked at both bad patient care and Medicaid fraud. (The company was fined $1.86 million by the State of Texas. Because most of Emeritus’ beds were assisted living, the company received little funding from Medicare or Medicaid.)

Emeritus went out of business after being acquired by Brookdale but we worry that the quality of care hasn’t improved. (One colleague says Brookdale assisted living facilities are “as bad as it gets.”)

Inadequate staff and supervision mean that seniors will continue to suffer preventable falls and deaths. Because fall data isn’t always required from assisted living facilities and because Medicare doesn’t publish quality of care grades like they do for nursing homes, there is less data available to assist families when making placement decisions.

One thing we always recommend is to schedule a visit on nights and holidays to see what staffing is like. Placement managers work bankers’ hours. That also happens to be when facilities are fully staffed.

Assisted Living Facility Neglect – Call to Action

We all get old. Many of us hope to die in our sleep, at home. That doesn’t always happen, unfortunately. For many people, the next best option to remaining at home is to live in an assisted living facility. Your own room but plenty of activities, three hot meals a day and housekeeping.

Unfortunately, we think that many seniors don’t get the quality of care they deserve at these facilities. So many of these facilities are operated by huge for profit chains that are more focused on profits than patient care.

If you or a loved one died or suffered a serious injury from a fall, abuse or neglect at an assisted living facility, call us. Our experienced team and national network of assisted living facility neglect lawyers can help. For more information, contact us online, by email [hidden email] or by phone at 833.201.1555. You can also visit our nursing home abuse page.

Do you work at a nursing home and know of abuse or neglect? You may be entitled to a cash reward. Visit our Medicare fraud nursing home whistleblower sister site for more information.

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Related topics: elder abuse (14) | neglect (28) | nursing home abuse (21) | nursing home neglect (20) | substandard care (24) | assisted living facilities


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