Falls-prevalence and responsibility

Recently it was reported that falls in nursing homes for people over 65 were five times more likely to occur than for people in the same age cohort living at home.

Whatever else that statistic may mean, it is a warning to Aged Care Providers that they must make every effort to avoid the risks associated with falls of elders.

The law imposes a duty of care upon those who have responsibility for the care of others. Especially is this so when the persons in care have a disability or illness thus making them more vulnerable or susceptible to risk and dependent upon their carer for support and protection from risk. This can certainly be the case for residents of aged care facilities.

The case of Mrs K

Although there are no reported cases (in the law reports) in relation to aged care facilities, there is an actual case which demonstrates very well the similar risks and potential adverse outcomes which helps our understanding of the possible course of legal process, when something goes wrong. Let us look at the circumstances and the results. I have not used the names and details from the case, but the facts are the same (Ref 1)

Mrs K entered hospital for relief from severe back pain and for observation. She was given medication which caused her drowsiness, confusion in her thinking and a state of disorientation and forgetfulness. She was assisted to the bathroom and left on the toilet, while the nursing staff made her bed. The nursing staff intended to assist Mrs K to shower and instructed her to ring the buzzer when she was ready for the shower.

As so often happens, the nursing staff was called away to another room during the bed making and Mrs K was left alone. Some five minutes later the nursing staff returned and resumed making the bed. At that point, Mr K arrived and discovered that his wife had fallen in the shower and had been injured. One can only try to imagine the additional pain this person then had to endure.

Why did the claim succeed?

The particular claims of negligence on which the claim on behalf of Mrs K succeeded were:-

1. Permitting the patient to be left alone while under the influence of sedative medication;
2. Failure to ensure that (Mrs K) did not attempt to walk by herself without assistance.

Since this was a judgment of the Full Court of the Federal Court of Australia, it cannot be lightly dismissed. One has only to think of the many times each day around Australia where these or similar circumstances occur in residential aged care facilities, to imagine the risks both to residents and Providers.

The result in damages

The damages which can be awarded  by a Court in such circumstances may take into account such matters as pain and suffering, loss of enjoyment of life, special medical attention or additional carer attention, medical expenses, physiotherapy and so on.

Although claims of this kind in an aged care facility have not yet been seen in the Courts and generally reported, such claims will undoubtedly occur in the future. 

Ref 1: For further details see Lewis, R., Elder Law in Australia, Lexis Nexis, Sydney, 2004 at p 161.

Author: Copyright 2009, Rodney Lewis.
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