Knowledge Library

Patient Falls: The Liability Landscape and Best Practices

Fall 2021

by Brad Byrne, Senior Risk Management Consultant

An online search for the phrase “slip and fall” returns a never-ending wave of advertisements for personal injury lawyers, premises liability insurance products, and risk management services. Absent from this deluge of results is any mention of medical malpractice. Ostensibly, this makes sense. Premises liability and medical malpractice are two separate and distinct categories of negligence.

However, when a patient falls in a healthcare facility or shortly after receiving treatment, the once bright line of demarcation between a premises liability claim and a medical malpractice claim can blur. Understanding the difference between these theories of liability and the obligations associated with each is crucial to protecting patients from injury and shielding providers from liability. Given the significant increase (estimated to be 46 percent per 1,000 patient-days) in the number of patient falls over the last half-century, this topic deserves renewed attention.1

Premises Liability v. Medical Malpractice

Premises liability (also known as “occupiers’ liability” in some common law jurisdictions) is a type of general liability for negligence that occurs when a property owner fails to provide a reasonably safe space for guests, visitors, or patients. If a leaking pipe causes a patient to slip on a wet floor, it would be considered a premises liability matter. Healthcare providers are responsible for ensuring there are no trip hazards and for cleaning up ones that appear. This obligation is the same duty of care owed by homeowners and retail workers.

Alternatively, a fall may lead to a medical malpractice claim when a physician or healthcare provider fails to take necessary care to ensure a patient’s health and safety. Common situations giving rise to such claims include:

  • Misdiagnosis regarding a condition that affects balance or vision or that results in confusion or limited mobility.
  • Failure to inform the patient of a medication’s possible side effects or interaction with other medications.
  • Failure to assess the patient as a fall risk despite the presence of factors indicating the patient is “at-risk.”
  • Failure to supervise patient properly following surgery.

Though both theories of liability are forms of negligence, significant procedural differences exist between the two causes of action. Medical malpractice lawsuits must satisfy particular requirements that include shortened limitations periods and strenuous pre-suit filing requirements. Premises liability suits are free from such constraints. Plaintiffs who incorrectly assume their injury is a premises case may risk having their claim dismissed for failure to timely submit an expert report or certificate of merit.

Consequently, a trial lawyer’s safest course is to treat all patient falls as professional negligence claims and seek a definitive determination from the trial court later in the litigation process. Courts tasked with answering this categorization question examine the nature of the care rendered at the time of the fall. A case proceeds as a premises liability claim if the care is deemed custodial, routine, or non-medical. If the nature of the care is medical or professional care, the professional standard of care applies, and it is proper to litigate the dispute as a medical malpractice action.

Whether a particular activity involves medical or non-medical care depends on the nature of the activity, not on its purpose or the location where the activity was performed.2 The following examples are a small sample of the ample case law that exists on this issue:

  • Kastler v. Iowa Methodist Hosp., 193 N.W.2d 98 (Iowa 1971) (giving showers to psychiatric patients was nonmedical care even though showers were given to make patients feel better).
  • Toledo v. Mercy Hosp. of Buffalo, 994 N.Y.S.2d 298 (Sup 2014) (slip and fall on urine on hospital floor, five days after patient underwent heart surgery was non-medical care, since the fall did not occur during post-operative period in which physician’s specialized knowledge would be involved).
  • Trimel v. Lawrence & Memorial Hosp. Rehabilitation Center, 61 Conn. App. 353, 764 A.2d 203 (2001) (transferring patient from wheelchair to exercise mat in physical therapy facility during therapy session was medical in nature).

Addressing the Issue

While it is impossible to eliminate all patient falls, literature on the subject suggests that over 90 percent of hospital-based falls are preventable.3 Establishing and implementing a comprehensive fall management program can help reduce fall risks and minimize liability in the hospital setting. Such programs consist of numerous proactive and reactive strategies. The Agency for Healthcare Research and Quality offers a host of tools, training, and research on preventing hospital falls, which are available online at https:// www.ahrq.gov/topics/falls-prevention.html.

Regarding physician practices, the standard of care generally does not require implementing a comprehensive fall management program. Even so, when a patient presents as an obvious fall risk or discloses that they are susceptible to falling, physician practices should take steps to account for the fall risk and mitigate injury to the patient in the event a fall occurs.

All providers are strongly encouraged to use the following risk management techniques:

  • Train staff to identify patients who present as a fall risk.
  • Ensure that a patient’s “at-risk” status is communicated at all handoffs.
  • Closely monitor postoperative patients who are capable of ambulating.
  • Implement an emergency plan which includes calling EMS in the event of a patient fall.

When providers fail to appreciate and plan for fall risks, patients are exposed to preventable harm. As the following case demonstrates, defending a lawsuit from this position is extremely difficult.

Case Study

A 77-year-old male with a history of falls presented at the provider’s office for shoulder surgery. The patient arrived wearing a back brace and using a cane. Immediately after the procedure, the patient visited the restroom without assistance or observation from the provider’s staff.

While exiting the restroom, the patient fell and fractured his hip. The patient died a few days later. The patient’s family filed a medical malpractice lawsuit against the provider, alleging that the patient’s death was due to stress caused by the fracture.

The discovery process revealed several facts which negatively impacted the defense of the provider’s actions. It came to light that the provider’s staff failed to consider the patient’s general instability and fragility, and failed to account for the patient’s increased instability during the post-operative period. More concerning was the provider’s post-fall documentation which indicated “no apparent injury with release.” This determination was inconsistent with the EMT and hospital notes which documented an obvious displaced fracture.

The provider was left to argue that the standard of care did not require a formal patient fall assessment in this setting. Meanwhile, the patient’s counsel was armed for trial with evidence that painted the provider as disinterested, detached, and inattentive. Against this backdrop, the provider agreed to settle this case before trial.

Numerous risk management teaching points can be gleaned from this case example, including:

  • Post-operative falls which occur while the patient is receiving postoperative care are generally going to be deemed “medical” in nature.
  • Damaging factual scenarios can impede defensibility even when there is an argument that the provider met the requisite standard of care.
  • Planning for “at-risk” patients exhibits a commitment to patient safety and demonstrates that each patient’s unique needs are accounted for.

Conclusion

Simply put, falls are a driver of claims within the healthcare industry. This trend is assured to endure as America’s baby boomer generation grows older. Understanding and accounting for this risk increases patient safety and helps shield providers from liability. That said, even the most robust and disciplined patient safety protocols will not eliminate the issue. Providers should review both their general and professional liability policies to ensure they are adequately insured for all manner of patient falls.

Endnotes

  1. Weil TP, Patient falls in hospitals: an increasing problem. Geriatric Nursing 2015 Sep-Oct;36(5): 342-7. doi: 10.1016/j.gerinurse.2015.07.004. Epub 2015 Aug 22. PMID: 26304626.
  2. Kaye RE, Causes of Action Against Hospital for Fall Suffered by Patient. Causes of Action Second Series. 52 COA2d 447.
  3. Morse JM, Preventing Patient Falls. Thousand Oaks, CA: Sage Publications; 1997.

Cures Act: The Effect on Health IT

Spring 2021

by Alex Ealy, JD, Senior RIsk Management Consultant

The 1996 Health Insurance Portability and Accountability Act (HIPAA) gave patients a right to view and request corrections to their medical records. In the intervening years, the widespread adoption of electronic health records (EHR), patient portals, and smartphone applications have led to an increase in patients accessing their medical records electronically. The digital evolution of the medical record has prompted a number of healthcare professionals and patient safety advocates to promote quicker access to information stored in the EHR.

The 21st Century Cures Act (Cures Act), passed by the U.S. Congress in 2015, provides new regulation on a variety of healthcare concerns including funding, research, access to new and experimental drugs, telehealth, and interoperability of health information technology (health IT). Authors of the Cures Act introduced a new phrase to the health care community related to the interoperability of health information technology: “information blocking.”

Information Blocking: Defined

“Information blocking” is defined by the Cures Act and paraphrased by HIT.gov as: “a practice by a health IT developer of certified health IT, health information network, health information exchange, or healthcare provider that, except as required by law or specified by the Secretary of Health and Human Services as a reasonable and necessary activity, is likely to interfere with access, exchange, or use of electronic health information (EHI).”1

While information blocking can occur when a healthcare provider intentionally restricts access to the patient’s medical record, it can also occur unintentionally as a byproduct of health IT.

Physicians, like patients, can also experience information blocking. For example, information blocking can occur when physicians move from one EHR to another, or when they try to access a patient’s medical record held by another physician. Information blocking can also happen when physicians try to connect EHRs to local information exchanges.2

However, simple interference with the access, exchange, or use of EHI, may not automatically constitute a violation of the Cures Act. To constitute a violation, actors, such as physicians, must have knowledge and intent to interfere with the access, exchange, or use of EHI.3 Essentially, provisions within the Cures Act seek to discourage physicians and entities from knowingly interfering with or discouraging access to a patient’s EHI. Healthcare providers found to be engaging in the practice may be subject to monetary penalties or reimbursement disincentives from federal healthcare programs, like Medicare and Medicaid.

Open Notes: When to Share

The information blocking provisions of the Cures Act are often colloquially referred to as “open notes.” Healthcare providers who do not make clinical notes open and available for their patients are engaging in the practice of information blocking, unless one of the Cures Act’s regulatory exceptions applies.

The OpenNotes organization—a group of clinicians and researchers committed to increasing patient access to their medical records— states that sharing medical notes can improve accuracy and patient safety, improve medication adherence, foster stronger relationships and better engagement, improve chronic care management, support care partners, and promote efficiencies.4

The Cures Act references eight types of clinical notes that must be made open to patients, including:

  • Consultation note
  • Discharge summary note
  • Procedure note
  • Progress note
  • Imaging narrative
  • Lab report narrative
  • Pathology report narrative
  • History and physical5

Cures Act Violations

The American Medical Association has provided examples of potential violations of the Cures Act including:

  • Formal restrictions: A provider or office policy requires staff to obtain a patient’s written consent before sharing any EHI with unaffiliated providers for treatment purposes.
  • Technical limitations: A physician disables the use of an EHR capability that would enable staff to share EHI with users at other systems.
  • Isolated interferences: A physician has the capability to provide same-day EHI access in a format requested by an unaffiliated provider—or by their patient—but takes several days to respond.6

Cures Act Exceptions to Information Blocking

While providers may read the requirements of the Cures Act and believe them to be burdensome, the information blocking rule contains exceptions for flexibility in operation. Knowing how the Cures Act differs from HIPAA is also helpful to understanding the scope of the act. HIPAA’s regulations affirmatively and specifically state what types of EHI can be shared with other providers, patients, and third parties. The Cures Act information blocking rule directs the providers to release records to patients and other providers in nearly all instances where an exception does not exist.

The two categories of exceptions to information blocking within the Cures Act provide flexibility to healthcare providers and organizations without burdening them with administrative rigidity.

  • The first category involves not fulfilling requests for access. These exceptions include preventing harm to the patient or another, protection of health information privacy, protection of health information security, infeasibility, and health IT performance.
  • The second category are those that involve procedures used for fulfilling requests. The exceptions in the procedures category include limitation in content and manner, reasonable fees, and licensing.

Risk Management Considerations

With enforcement provisions of the Cures Act expected to be announced in the near future, it is important to train staff in sound documentation practices to help manage risk. Be mindful of the following as more and more patients expect instant access to their medical records:

  • Assume all notes will be read by the patient.
  • Complete documentation in a timely manner.
  • Avoid abbreviations that may be standard in the healthcare community, but not easily interpreted by the patient.
  • Avoid the use of pejorative terms such as “malingering”; instead, use factual observations in the chart.
  • Use plain language and focus on clarity, for the benefit of the patient as well as other healthcare providers.
  • Avoid copying and pasting from other sources.
  • Before documenting difficult situations, attempt a conversation with the patient first.

Conclusion

It is important to note that the Cures Act’s information blocking rule does not override existing state and federal rules protecting patient confidentiality. Compliance with state and federal laws that require patient consent before production of medical records would likely not constitute information blocking. For example, a state may require certain conditions be met before releasing certain classes of EHI, such as HIV status or adolescent mental health information. In these instances, physicians should not release that EHI without first obtaining consent from the patient.7

The compliance date for healthcare providers to meet the Cures Act information blocking requirements was April 5, 2021. Healthcare providers will need to make the same information available on patient third-party applications by October 6, 2022 to not be engaged in information blocking.8

The good news for physicians is that although the date for Cures Act compliance has passed, the final rule went into effect without applicable enforcement provisions—which means physicians still have time to bring their EHR systems and procedures into compliance. With proper planning and training, physicians and their organizations should be able to implement minor procedural changes to comply with Cures Act requirements.

Resources

Endnotes

  1. https://www.healthit.gov/topic/information-blocking, emphasis added, accessed March 18, 2021.
  2. https://www.ama-assn.org/system/files/2021-01/information-blocking-part-1.pdf accessed March 18, 2021.
  3. Ibid.
  4. https://www.opennotes.org/opennotes-for-health-professionals/ accessed March 18, 2021.
  5. https://www.healthit.gov/isa/united-states-core-data-interoperability-uscdi accessed March 18, 2021.
  6. https://www.ama-assn.org/system/files/2021-01/information-blocking-part-1.pdf accessed March 18, 2021.
  7. https://www.ama-assn.org/system/files/2021-01/information-blocking-part-1.pdf accessed March 18, 2021.
  8. https://www.opennotes.org/onc-federal-rule/ accessed March 18, 2021.