Photo Credit: jynmeyer

The risk of hospital acquired infections has generated a lot of publicity in recent years.  And rightfully so.  Infections can be dangerous and hospitals have a poor track record of keeping patients safe.  This issue has garnered particular attention recently given the growing list of antibiotic resistant bacterium and recently discovered, widespread contamination of crucial medical equipment (e.g., https://jamiegoslee.com/2016/09/13/unsuspecting-patients-exposed-to-deadly-mycobacteria-infection/).  But one of the most persistent and significant risks facing hospital patients remains overlooked, under-reported and preventable.  What is this risk?  Falling.

Believe it or not, the biggest risk you likely face going into a hospital for surgery is not an infection, surgical complication or medical malpractice, but a post-operative fall.  This is especially true for older patients undergoing procedures involving anesthesia.  Older patients are especially sensitive to anesthesia and the drugs well known cognitive side effects.  It is not uncommon for patients to have some disorientation as anesthesia begins to wear off.  But older patients are at an increased risk for confusion, often unable to remember or follow instructions (such as “don’t get out of bed”) for days after receiving anesthesia. Also, older patients often remain physically infirm and unsteady for days (sometimes weeks) after surgery.  In short, older patients are not only more likely to fall, they are more likely to suffer serious injuries.

For decades, hospitals have recognized the danger patients face if they fall. For decades’ hospitals recognized that too many patients were falling down and suffering catastrophic injuries.  Many of these patients were suffering injuries that left them permanently disabled.

Hospital falls and injuries became a national epidemic. To address this problem, the Joint Commission on Accreditation of Health Care Organizations (“Joint Commission”) requires accredited hospitals to adopt policies and procedures to reduce the risk of patient falls.  These policies and procedures are called “fall precaution guidelines.”  And nurses are primarily responsible for implementing these guidelines.

Normally, fall precaution guidelines utilize a two-step process. The first step for nurses is to identify which patients are at an increased risk for falling.  The second step is for nurses to implement specific tools or interventions to prevent high risk patients from falling.

One of the most popular, evidence based fall prevention guidelines used by hospitals is called the Hendrich II Model.  The Hendrich II is popular because it has a predictive accuracy rate of about 70%.  In other words, it is correct in identifying high risk patients about 70% of the time.

Here is how it works. At least once every 24 hours, nurses rounding on patients are supposed to assign a fall score to their patients.  A fall score is a numeric score that is used to identify who is at risk for falling.  Following the guidelines, nurses are supposed to consider various factors that have been shown to put patients at risk for a fall.  Each factor has a number associated with it.  The nurses go down the list of factors and check the box next to each one that applies to a patient.  They then add up the numbers associated with each box they check, and that is a fall score.

So for instance, patients who are unable to stand up on their own are at higher risk for falling.  If you are a patient who can’t stand up on your own (for instance if you just had major knee surgery), under the Hendrich II model, you get a fall score of 4.  Certain medicines can also increase your risk of falling. Under the Hendrich II if you are taking certain medicines, you get additional points. If you are on pain medicines, you may get 2 additional points because pain medications can cause confusion, drowsiness and balance problems.

Using the Hendrich II, a patient with a score of 5 or higher is considered a “high fall risk.”  And once a patient is identified to be a high fall risk, the guidelines have a list of preventative measures that can be used to reduce the risk of a fall or injury.  For example, nurses rounding on high-risk patients should:

• Instruct the patient that under no circumstances should they try to get out of bed without first notifying a nurse.

• Make sure all the nurses and staff are aware that the patient is a fall risk. Preventing falls takes a team effort, so the entire staff must be aware of the risk.

• Make sure a call bell is within easy reach of the patient so the patient does not need to get out of bed to contact a nurse.

• Make sure that the patients bed is in the lowest position possible. This is important because if a patient does try to stand up and falls, they are closer to the ground.

• Make sure the patient has on non-slip socks.

• Using a bed alarm. A bed alarm is an alarm that goes off if a high-risk patient tries to get out of bed. This is important for two reasons. One, it serves as an audible reminder to patients that they should not try to stand up. Second, it alerts the nursing staff so that they can enter the room and assist the patient.

• For elderly patients, particularly those who recently had anesthesia or are taking medications known to cause drowsiness or disorientation, notify the patients loved one that they have been identified as a fall risk and encourage them to stay with the patient. This is important because elderly patients can become confused, especially at night and try to get out of bed.  Having a loved one nearby can reorient a patient and keep them in bed.

Fall precaution guidelines have proven effective for reducing the risk of patient falls.  But they are only effective if they are used.  What is troubling is that many hospitals go to great lengths to formulate and “officially” adopt fall precaution procedures to comply with the Joint Commissions mandate, but don’t actually use those procedures and do not adequately train nurses to use them.  In other words, hospitals create the procedures to get the Joint Commission off their back and then put them on a shelf, never to be seen again. Unenforced policies are worth less than the paper they are printed on.

And this problem, of formulating, but not enforcing fall prevention procedures brings me to a critical legal issue in Pennsylvania.  For 30-years Pennsylvania has recognized that hospitals owe non-delegable duties to ensure the safety of their patients.  Indeed, since the seminal case of Thompson v. Nasson, hospitals have been subject to direct negligence (as opposed to the vicarious negligence of its staff) for breaching 4 specific duties.  These duties include the following:

(1) a duty to use reasonable care in the maintenance of safe and adequate facilities
and equipment;
(2) a duty to select and retain only competent physicians;
(3) a duty to oversee all persons who practice medicine within its walls as
to patient care; and
(4) a duty to formulate, adopt and enforce adequate rules and policies to ensure
quality care for patients.

The last duty, the duty to formulate, adopt and enforce rules and policies has particular importance in hospital fall cases. This is true because, as noted above, hospitals are good at adopting fall prevention policies, but often fail to enforce them (which requires allocation of time and resources).  But a review of the case law in Pennsylvania shows that direct negligence cases involving the duty to formulate, adopt and enforce policies and procedures focus primarily on whether policies and procedures were adopted and whether they were adequate.  There is almost no case law dealing with a frequently encountered scenario where a hospital adopts adequate policies, but does not require or adequately train its nurses to use them.

The lack of precedent on the issue is likely the result of lawyers not advancing this theory through trial. For whatever reason, the focus of plaintiffs’ lawyers has been on whether a hospital has procedures and whether those procedures work. In my opinion this is a mistake.  As noted above, even the best policies and procedures are pointless if they are not used.  And although not presented with the square issue, the Pennsylvania Supreme Court has made clear that a hospital’s failure to actually enforce its policies can give rise to a claim of negligence: “hospitals [have] obligations to observe, supervise, or control a patient’s treatment approved by multiple physicians, and to apply and enforce its consultation and monitoring procedures.”

Given the prevalence of injuries caused by hospital falls and the recurring pattern of hospitals not enforcing policies aimed at preventing these occurrences, lawyers would be wise to pursue a broader approach in representing injured clients.

James Goslee is a trial attorney in Philadelphia and can be reached at https://jamiegoslee.com/about/