What are my rights to compensation from a fall at an assisted living memory care center?

I think only a lawyer can answer if they might be liable for negligence. I think not, but that is not a legal opinion!

My mother fell in the NH. She got out of bed herself and walked to the doorway. Then down she went -- probably because her hip broke at that point. Was the NH negligent? We didn't think so. They certainly weren't responsible for the hip joint giving out. The same thing could have happened if an aide had been right there. It could have happened if she was using her walker. Sometimes these things are nobody's fault.

Yes, your mother's fall was "preventable." But that assumes she was being attended to by an infallible CNA. Infallible people do not tend to apply for CNA jobs (or any other jobs that I'm aware of.) There is always a risk of human error when our loved ones are under someone else's care. (Or even under our own care.)

It sounds to me like this care center is being very proactive in trying to prevent falls and minimizing the risk of injury if a fall occurs. The staff loves your mom dearly. Personally, I would not rock the boat here.

Hmm
Does the contract say that they are not responsible for falls? Most NHs point this out upfront

Mom has had 4 falls since her move to memory care - 3 of the four were assisted falls where they couldn't keep her upright and brought her to the floor on her bottom - during which she hurt her foot so badly that she no longer is able to walk

That said I witness very bad falls there all the time - most recently a family called the ombudsman to investigate

My mom fell out of her hospital bed and sustained a black eye.

My grandma fell out of her low-to-the-floor nursing home bed and sustained a black eye and broken arm.

My dad fell out of his wheelchair in the nursing home and sustained a black eye which also needed 7 stitches.

Between 50% and 75% of residents of nursing homes fall (NursingHomeAbuseCenter.org). Elderly people fall. While I work in hospice now I spent many years working at the bedside and I can perfectly place myself in the CNA's place. She probably didn't even turn her back but pivoted to dispose of the brief and in that split second your mom fell.

You're fortunate in that the facility is taking responsibility. Not all facilities would. Many would close ranks and you'd end up with vague explanations and excuses. I think it's reasonable that they pay the medical bills but negligence? I'm not so sure. Was the facility negligent? They suggested and paid for a hospital bed and mat. That's not the action of a negligent facility. And you said that the experienced CNA is torn up about the fall. Was she actually negligent? Did the facility and/or the CNA actually neglect your mom, causing her to fall?

You said your mom's been there for 3 years and they adore her. If you bring suit against the facility do you have another facility to move your mom to?

And while I hate to use your situation for a cause I would like to climb on my soapbox for a second and say that taking the rails off of hospital beds in a nursing home was ridiculous. I understand they're considered "restraints" and theoretically people can get their heads wedged in the rails somehow and strangle themselves to death (that probably happened to one person with a tiny head) but the benefits of rails far outweigh the risks. Healthcare workers need those rails. When they're cleaning a person in bed that person needs to be rolled several times and with no rails one can't roll someone from one side of the bed to another. Those rails protect the patient from rolling right off the bed and onto the floor. I understand not tying someone up who's in a wheelchair or recliner and I understand not using soft restraints in the bed but those hospital beds need rails.

*climbing down from my soapbox*

sdbike, I'm sorry about what happened to your mom. Please think long and hard before you sue the facility. Just because you can doesn't mean you should.

Dear Irishlass and the rest. I take your points seriously and thank you. Just to clarify that last response, I am paying for the hospital bed and floor mat. They pay for nothing. After reading your responses and also doing additional research, it seems that these falls happen much more often than we all think about it. And you are correct in that if we place the care of our loved one with someone else, unless they were either intentionally negligent or not qualified, reimbursement for co-pays, ambulance charges etc would be the correct thing to do and i will leave it at that. Thank you again

Here is the thing. If you can get a lawyer to take the case on contingency (meaning he only gets paid if he wins) then you know you have a good case. BUT?.if the lawyer wants you to pay him a retainer (you pay him up front) then that shows you there is little to no belief you could win.

Simple test

Does your mother receive Medicaid medical or Special Assistance from the state that pays for her Assisted Living costs? If so, I'd consider that when considering a monetary recovery for her injuries. I'd explore if recovering money could increase her assets and cause her to then have too much to qualify for those benefits. I'd seek legal advice from an attorney, to find out her options.

As Sunnygirl notes, any recovery for her injuries are your mother's recovery - NOT yours. Medicare and Medicaid have now got paperwork in place that monies received as recovery for injuries are used to offset money spent for an individual's care up to that point, not put into the bank account of the individual. Many tort lawyers now establish a trust account for recovery money on injury cases in case there is a claim against those monies by any state, federal, or private insurance that paid out money for care on the individual that gets a recovery.

That's right. I think that Medicare does have a lien on any money she might recover to reimburse them for medical bills they paid. I'm not sure about Medicaid.  Of course, she may get enough for her pain and suffering, but,.....I'd talk to the lawyer about how he all works. It's not simple.  I'd figure out if recovering funds would really be to her benefit, taking all things into consideration.  

Yes, Sunnygirl. State Medicaid and Federal matching put that in place when people started getting care from medicaid for thousands of dollars of care and suing car companies, tobacco companies etc. and pocketing the payouts while their health care was funded by public coffers. Private insurance does the same - it's in the paperwork if you get an injury settlement from a car accident that your health insurer has a right to recover from YOU if you recover from an accident so you are not "unduly enriched".

I think ur telling the truth but I can't believe a staff member would say it was preventable and put the facility in line for a law suit. If the pad on the floor is like Mom's, it is very hard to walk on. I almost fell walking on it. So I can see why the CNA moved it. Is the Manager as far as u can go? If not, go higher. Tell them your concerns and you feel any out of pocket should be paid by them. My daughter is a RN in rehab/LT. She says, there will be falls. The state ties their hands. They r allowed to put one side rail up. The one facing the door has to stay down. So a floor pad can be used and a bed alarm. Moms mattress is slightly concaved so she can't roll out of bed. Hospital beds are able to go almost to the floor. Shorter distance if the person does roll out of bed.

sdbike, what type of facility is your Mom living in, as in my area, nursing homes supply the beds, mats, etc.?

Elders fall, sadly that is their job now. When my Mom was in long-term-care, I lost count on how many times I Mom slipped from her bed, her wheelchair and her geri-recliner. Mom couldn't remember that she couldn't stand or walk. Since nursing homes cannot use restraints, they can only do what they can.

My Mom had fall pads around her bed. The bed was almost down to the floor unless it was time for a diaper change. The Staff even tried a seat-belt on Mom's geri-recliner, but within seconds they heard "click" and Mom had that belt undone. The way I look at a fall, what if the elderly parent was living with a grown son or daughter and the parent fell would any of us sue that son or daughter? Even one that we were paying to take care of the elder?

Hi all. Thank you again for your answers. Here is some further information to questions you all asked. First of all, we are private pay. We have been and we will not have to use Medicaid. I realize any compensation goes to my mother. We are in an assisted living facility which I know is different from a skilled nursing facility. Mom has been in both and believe me, I have had to learn the hard way how much more difficult life has been dealing with the regulations of assisted living vs. skilled nursing. She was in skilled nursing in SC and now assisted living in NC. The reason for the move was two fold. First, I live in NC and found it would be best for me to live nearby her to take care of all of her affairs as well as to be able to visit on short notice, such as was needed yesterday. Secondly, as you all probably know, skilled nursing is so much more expensive and when I did a budget for 10 to 15 years out, I saw that her money would start to run out. When we started all this she was 80. She is 91 now. In the skilled facility she was in, which was the best care she has ever had, there was a man who did not die until he was 108. So I was dealing with how to make mom's money last in the event we would be doing this for 20 years. Already it is 11 years. Adding to the situation is the fact that my moms legs are contorting now so she shifts herself somewhat to relieve pressure, tension etc. when in bed. Whereas we thought she was completely immobile all this time, we are now seeing movement, possibly because this bed is so narrow and her need to move. And yes, it does seem "stupid" for the manager to have admitted this was preventable, but we have a very very good relationship based on honesty. I am the most visible and responsibility family member there. They all notice that and we all have a special bond. I know all the residents and care givers and interact with all of them. I have contacted the Director of the facility who is well aware of my track record of holding them accountable for misplaced and lost items, making them reimburse me each and every time I had to replace things. Such as eyeglasses!!. They are fair in that they do come clean with me. I did file an negligence complaint with the state of NC at one of their sister properties where she first was at, so they know I mean business when I approach them with "situations". The findings of that complaint were in my favor and they had to make many changes. I am not looking to rob anyone blind, but I do want to make sure they take responsibility for their negligence in not securing my mother in her bed so she would not fall.

To FreqFlyer...In response to your last statement regarding whether I would sue a relative if the same thing happened in their home, the answer would be no. And I am not going to sue this facility, unless mom were to have died. But the difference is that they are bound by law to follow regulations set forth by the state to assure paying residents and their families that the best care will be given to all people entrusted to them. When i am paying over $6,000 a month for my mother's care, I do not expect that they would contribute to my mother falling, vs, my mother falling due to her own fault.