Patient falls are a frequent cause of hospital and nursing home injuries. An estimated 700,000 to 1,000,000 falls happen in United States hospitals every year, causing about 250,000 injuries and as many as 11,000 deaths. Of the nation's roughly 1.6 million nursing home residents, around 50% fall each year. About 10% of nursing home falls end in a serious injury, including some 65,000 hip fractures.
When a hospital or nursing home patient falls because of someone's negligence (carelessness), does the patient have a medical malpractice claim? Or is it an ordinary slip and fall case? The answer depends on what caused the patient to fall. If the fall happened because of medical errors during the patient's care, it's probably a malpractice case. If the fall had nothing to do with the patient's medical care, it's likely a slip and fall case.
When a hospital or nursing home patient is hurt because of a fall, the injured patient might bring one (or both) of these claims:
Let's learn about the basics of each.
Most often, medical malpractice is just another name for medical negligence. Medical negligence means that a doctor, a nurse, or some other member of the patient care staff failed to act with the same level of care and skill as a person with the same training and experience would have acted under similar circumstances. In legal terms, it's called failing to meet the medical standard of care.
To win a medical malpractice claim you must prove medical negligence. In addition, you have to show that the medical negligence caused you some injury. In some cases, the hospital or nursing home can be held liable for a staff member's negligence.
A slip and fall claim is what lawyers sometimes call a premises liability case. A premises liability case usually is based on negligence, meaning the failure to act as a reasonably careful person would act under similar circumstances.
Proving a slip and fall claim typically means showing that the owner negligently failed to keep the property—a store, an office, or a hospital or nursing home—reasonably safe from dangerous conditions that could cause a fall. In the classic example, a store owner negligently allows a slippery substance to remain on the floor, causing a customer to fall.
As with medical negligence, in a slip and fall claim, you must prove that the negligence caused you to suffer an injury.
While slip and fall cases aren't easy to prove, a medical malpractice claim can be even more difficult. Why? There are lots of reasons. Here are just a few.
For a patient's fall to be the result of medical malpractice, two things must be true. First, the patient must have received substandard—meaning negligent—medical care. Second, that negligent medical care must have caused the patient to fall.
How might medical negligence cause a patient to fall? Here are some common examples:
As a rule, every hospital or nursing home patient should be assessed for fall risk. Does the patient have a history of falling? Are there medical conditions—a past stroke, a hip fracture, dizziness or lightheadedness—that could cause a fall? Does the patient use assistive devices like a walker or a cane to get around? Falls are more likely in patients who aren't properly assessed for fall risk.
Hospital and nursing home patients are likely to be medicated. Some of those medications, alone or in combination with other drugs, can produce side effects that increase the likelihood of a fall. The patient's medications should be considered as part of a medication-induced fall risk assessment.
If medical staff fail to diagnose or misdiagnose conditions that are likely to cause falls, the patient can be at risk. Patient complaints that might indicate a stroke, dementia, broken bones, and other conditions can easily be attributed to more benign problems like depression, confusion, or irritability. When not properly diagnosed, some conditions can contribute to patient falls.
Hospital and nursing home patients often need assistance or close supervision for daily activities. Transfers from bed to a wheelchair, walking, bathroom activities, and dressing and grooming can lead to falls in patients who aren't properly assisted or supervised. Quite often, hospitals and nursing homes don't have the staff needed to properly supervise and assist patients who need routine monitoring.
Dangerous conditions that might cause a slip and fall can be found almost everywhere—in a store, on the sidewalk, or while visiting a neighbor's house. Hospitals and nursing homes are no different.
It's not surprising, then, that a patient's fall might simply be a result of negligent failure to keep the hospital or nursing home free of dangerous fall hazards. If the reason for a patient's fall is unrelated to the patient's medical care, chances are it's a premises liability—meaning a slip and fall—case.
Suppose, for example, that a patient is admitted to a hospital emergency department for treatment of a broken finger. While walking to the restroom, the patient slips and falls on a puddle of water that accumulated under a leaky ceiling panel. If we assume that the patient wasn't anesthetized or given any medication that might have contributed to a fall, any resulting injury lawsuit would probably be a "slip and fall" case.
There's no simple answer to that question. We'll look at some of the factors you might consider but in general, the question you want to answer is this: Are your injuries and damages enough to make the time and expense of a medical malpractice claim worth it?
Here are a few factors (in addition to those we discussed above under "Why Does the Difference Matter?") that you should discuss with an experienced personal injury lawyer:
If your injuries are relatively minor and the fall didn't cause you any permanent disability, it will be hard to justify the expense of a malpractice claim. The costs of bringing your claim, especially if you have to file a lawsuit and take the case to trial, are likely to far outpace the damages you can expect to collect.
If you have a good malpractice claim, you should be able to find an experienced malpractice attorney to take your case. The attorney might be willing to advance the case expenses. But who's ultimately responsible for those expenses if you lose? Be sure to talk to your attorney about payment of case expenses before you decide to file a lawsuit.
Bringing a malpractice claim or lawsuit can be anxiety-provoking and emotionally exhausting. Unless you hire an attorney to handle the claim, you'll have to deal with an insurance adjuster who's likely to try to convince you that your claim isn't worth anything.
If you end up filing a lawsuit, odds are that you'll have to testify in a deposition. If your case doesn't settle and you end up in trial, you'll be expected to testify in court, too. These and other parts of a malpractice case can be very stressful.
If you were hurt in a hospital or nursing home fall, you shouldn't try to decide on your own if you've got a medical malpractice or a slip and fall claim. That's a legal judgment that requires the expertise of a knowledgeable personal injury lawyer, one who knows both kinds of cases.
If you go it alone and guess wrong, you could lose your chance to recover for your injuries. Talk to an experienced attorney about your fall and how it happened, and get a full explanation of your legal options.