Defending Patient Falls Litigation
Hundreds of thousands of patient falls occur in hospitals in the United States every year with an estimated 30–50 percent resulting in injury.1 While many patient falls in the anesthesia workplace result in transient injuries, some result in serious patient harm.2,3 Patient falls frequently result in litigation, medical and nursing board investigations, and other significant consequences. This article examines the relatively rare but preventable adverse events, highlights a case study, and offers risk management analysis and strategies to prevent patient falls in the anesthesia workplace.
As members of the surgical care team involved in positioning, monitoring, and transferring patients, anesthesia professionals have an important role and share in the duty to keep patients safe from falls. Patients, families, and juries will not accept that patient falls are a known risk and complication. In most cases, these adverse events result in litigation against anesthesia professionals and other team members present. Defending litigation involving patient falls is extremely challenging for multiple reasons and frequently results in settlements, as highlighted by the following case study.
A 20-year-old female with chronic lower back pain and sciatica was receiving epidural steroid injections for treatment. The anesthesiologist started an epidural steroid injection with local anesthesia without the assistance of another health care professional. During the epidural procedure, the patient fainted and fell from the procedure table onto the floor, landing on her face and shoulder. The patient sustained lacerations to her face and bruises to her lips. However, no fractures were found on x-ray and she was referred to a plastic surgeon. The patient underwent a laminectomy two months after the incident.
The patient sued the anesthesiologist and hospital, alleging negligence with respect to her fall in the procedure room. The patient claimed she had to take a semester off from college due to her pain and subsequent surgery resulting in additional tuition costs. The patient’s initial settlement demand was $150,000. She reported suffering a head injury with continuing headaches, facial scar, and exacerbation of her pre-existing back condition that required laminectomy.
The defense expert could not support performing an epidural steroid injection without the assistance of a nurse. However, he stated that the nature of the patient’s fall should not have exacerbated her low back condition. He indicated the patient’s chronic low back condition was steadily deteriorating, and she would have needed a laminectomy regardless of the fall. The patient’s medical records also confirmed she had reported a history of headaches prior to the fall.
The hospital was dismissed prior to trial. Despite several rounds of negotiations, a mutually agreeable settlement amount could not be reached, and the parties proceeded to trial. On cross-examination, defense counsel questioned the patient regarding her significant medical history of back pain and her academic challenges prior to the fall. Based on her testimony and concessions, her attorney lowered the settlement demand and the case settled for $35,000 in indemnity with $33,327 incurred defense costs (loss adjustment expense [LAE]).
|Risk Management Analysis|
|The hospital policy for epidural steroid injections required the presence of a nurse or other health care assistant before the procedure could begin. The violation of the hospital policy and the resulting fall was a deviation from the standard of care. Additionally, the anesthesiologist admitted he made a mistake and apologized to the patient following this incident. Based on these facts, the defense admitted liability and tried this case only on damages. While not a common defense strategy, this prevented the patient’s attorney from attacking the anesthesiologist’s credibility and allowed the defense to challenge the patient’s damages claims.|
Most patient falls in the anesthesia workplace are considered preventable.4 Plaintiff’s attorneys typically argue preventing patient falls is a shared responsibility, and each member of the surgical care team has a duty to prevent these potentially devastating and life-threatening complications. Litigation involving patient injuries from falls also allows plaintiff’s attorneys to argue “res ipsa loquitur” (Latin for “the thing speaks for itself”), which is the legal doctrine that infers negligence from the very nature of the injury and allows plaintiffs to meet their burden of proof without the need for expert testimony.5 In most cases, jurors simply will not accept that these types of accidents and resulting injuries occur without negligence.
Given these defense challenges, plaintiff’s attorneys typically evaluate these cases as having increased settlement value, even when the injuries may not be severe. Based on the uncertainty of allowing a jury to calculate the amount of damages to be awarded to a patient who is injured from an arguably preventable fall, most anesthesia professionals and their professional liability carriers settle these cases rather than defend them at trial.
Legal and other consequences of these settlements may include3:
- National Practitioner Data Bank reporting of event
- State medical licensing board investigations and penalties that may include fines, published reprimands, and compulsory continuing medical education and training
- Centers for Medicare and Medicaid Services and third-party payer investigations and disciplinary actions
- Possible revocation of privileges at practice facilities
- Unfavorable media coverage
Causes of Patient Falls
A number of key elements have been identified as contributing to patient falls in the perioperative workplace3:
- Patient attributes—obesity, age, positioning other than supine, sedated or altered consciousness, and agitation during induction or emergence
- Provider actions and inactions—distractions, shifting attention from patient to other unrelated or related OR tasks, assumption that other providers are securing the patient, and vulnerability to production pressure
- OR table factors—new or unfamiliar OR tables and controls, improper function or use of locking mechanism on certain spinal tables or other mechanical table failures, extremes in positioning (e.g., side tilt, steep or reverse Trendelenburg position)
- Absence or inadequacy of safety restraints
- Table tipping
|Risk Management Recommendations|
|Anesthesia professionals, as patient safety advocates, should help focus perioperative team attention on three primary contributors to minimize the risk of patient falls:
Brian J. Thomas, JD, is vice president—Risk Management for Preferred Physicians Medical, a medical professional liability insurance carrier that provides malpractice insurance to anesthesiologists and their practices.
The author has no conflicts of interest to report.
The information provided is for safety-related educational purposes only and does not constitute medical or legal advice. Individual or group responses are only commentary, provided for purposes of education or discussion, and are neither statements of advice nor the opinions of APSF. It is not the intention of APSF to provide specific medical or legal advice or to endorse any specific views or recommendations in response to the inquiries posted. In no event shall APSF be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the reliance on any such information.
- The Joint Commission. Sentinel Event Alert 55: Preventing falls and fall-related injuries in health care facilities, Issue 55, September 28, 2015. Available at: https://www.jointcommission.org/sea_issue_55/ Accessed on March 13, 2018.
- A search of Preferred Physicians Medical’s database of 14,159 adverse anesthesia events identified 129 patient falls including 37 claims and litigation files. Accessed on July 1, 2018.
- Prielipp RC, Weinkauf, JL, Esser TM, et al. Falls from O.R. or procedure Ttable. Anesth Analg 2017;125:846–851.
- CMS ICD-10 Hospital Acquired Condition (HAC) Definitions Manual. Available at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalAcqCond/icd10_hacs.html Accessed on March 13, 2018.
- The Law Dictionary – Featuring Black’s Law Dictionary Free Online Dictionary 2nd Ed. Available at: https://thelawdictionary.org/article/res-ipsa-things-speak/ Accessed on August 20, 2018.