My Mom Fell at a Nursing Home. What Can I Do?

Brutal nursing home abuse cases, mostly physical abuse cases, usually dominate the headlines. Nursing home neglect injuries, such as fall injuries, are much more common. Year after year, more than half of nursing home residents sustain a serious fall.

Relatives and other loved ones are well aware of the serious physical and emotional injuries that falls usually cause. Both kinds of injuries are permanent. Among older adults, broken bones and other physical injuries normally never completely heal. In fact, most elderly fall victims cannot ever live independently again. Their physical limitations are too severe. Emotionally, many of these victims become recluses. They’re so afraid of falling again that they basically become prisoners in their own houses.

A Los Angeles personal injury attorney helps ensure that older fall victims are able to make the most out of their retirement years. Attorneys connect victims with doctors who heal their bodies, and minds, to the greatest extent possible. Additionally, lawyers obtain the financial compensation these victims need to pay fall-related expenses, like medical bills, and put their injuries behind them.

Did the Nursing Home Have a Duty of Care?

First and foremost, our nursing home fall consultations usually focus on this issue. Unless the nursing home could be legally responsible for the fall, there’s no point in determining if the nursing home was legally responsible for the fall.

To determine property owner duty, many states cling to an outmoded analysis that divides victims into overlapping categories that no one really understands. Several years ago, California lawmakers replaced this system with a factor-based analysis. All nursing home owners, grocery store owners, private homeowners, and other property owners have a duty of care. The extent of that duty depends on factors such as:

• Likelihood of a Similar, Serious Injury: As mentioned, most nursing home residents fall at least once. Also as mentioned, these falls cause serious physical and emotional injuries. Additionally, usually because of pre-existing medical conditions, older people are more at risk for a fall and more likely to sustain serious injuries.
• Owner’s Knowledge of Hazard: This evidence can be direct or circumstantial. Smoking guns include safety reports and common area cleaning reports. Judges typically use the time-notice rule to evaluate circumstantial evidence. If someone just spilled something on the floor, the owner probably didn’t know about the hazard. If the spill happened an hour earlier, that’s different.
• Owner’s Control Over the Area: Nursing home owners usually have exclusive control over indoor common areas and outdoor walkways. Nursing home owners usually have partial control over individual patient rooms, especially if these rooms have locks.

Other factors include the nature and location of the property as well as the difficulty of protecting against the hazard.

Can a Los Angeles Personal Injury Attorney Prove Negligence?

Normally, attorneys rely on the police accident report and witness statements to prove negligence, or a lack of care, in injury cases. Both kinds of evidence may be unavailable, or at least not compelling, in nursing home fall cases.

Emergency responders very rarely make written reports in these situations. Sometimes, the victim’s statements to emergency responders may be admissible under an obscure exception to the hearsay rule, but that’s not guaranteed.

Additionally, deep down, many people, including many jurors, believe older people have memory and recall issues. Therefore, jurors often give little credence to witness or victim testimony in these cases.

We mentioned obscure legal loopholes above. Another equally obscure loophole, the res ipsa loquitur rule, often benefits victim/plaintiffs in fall injury claims.

Essentially, if negligence normally causes the injury, and the owner had exclusive control over the premises, jurors may presume that the owner’s negligence caused a specific fall. 

Negligence almost always causes falls. Granted, many older people have pre-existing medical conditions. However, these conditions usually don’t cause these individuals to fall out of nowhere. Similarly, someone could push an older person down, but such incidents are rare.

We also touched on control issues above. Normally, if the fall happened in a common area, res ipsa loquitur is almost a given. If a resident fell in his/her room, owner negligence might be harder to prove.

Negligence is never “hard” to prove in civil court. The burden of proof is only a preponderance on the evidence (more likely than not). That legal standard practically means victim/plaintiffs get the benefit of the doubt.

Injury victims are usually entitled to substantial compensation. For a free consultation with an experienced Los Angeles personal injury lawyer, contact the Law Offices of Eslamboly Hakim. Lawyers can connect victims with doctors, even if they have no money or insurance.