The elderly are more susceptible to injury-causing falls, which is why nursing homes and other assisted care facilities have a duty to ensure that preventative measures are in place and that proper treatment is offered should one occur.
However, our Bangor wrongful death lawyers recognize that it is not enough in a civil trial to prove liability simply by showing that an injurious fall occurred while a patient was in the defendant nursing home’s care.
In these cases, what must be proven under the Maine Health Security Act is professional negligence. The recent case of Estate of Boulier v. Presque Isle Nursing Home, reviewed on appeal by the Maine Supreme Judicial Court, reveals how this threshold of proof can be difficult to meet – underscoring why you must trust your case to an experienced attorney.
The Bouiler case stems from a fall at a Presque Isle nursing home that resulted in the death of an 85-year-old Bangor woman in January 2009.
According to court records, each patient at the facility was given a specific health care plan, wherein the purpose is to instruct nursing home staffers as to any special instructions regarding patient care. In the care plan drawn up for the victim in this case, her health care providers had noted that she was highly susceptible to falls. She suffered from both dementia and hip problems.
On the morning that she suffered a serious fall, her chart indicates she required assistance in order to use the toilet. It was known that the victim routinely in the middle of the night got up out of bed to use the toilet without help, despite the instruction in her care plan. Although the facility by law cannot restrain patients to keep them in their beds at night, each patient’s bed was equipped with an alarm that notified staff if a person left their bed.
On this occasion, the nurse aide heard the alarm, went to check on the patient and found her on the toilet. The aide was supposed to stay in the vicinity, while respecting the patient’s privacy. The aide then instructed the patient to stay where she was so that she could obtain gloves to help her up. The patient nodded. However,when the aide walked away, the patient fell, struck her face on a trashcan. This resulted in serious injury requiring hospitalization. The patient died a week later in the hospital.
The patient’s family filed a wrongful death lawsuit against the nursing home, alleging professional negligence. The negligence alleged involved leaving the patient alone in the bathroom, contradictory to her care plan.
At trial, a nurse testifying on behalf of the patient’s estate was critical of the fact that the facility did not have gloves or a call bell available in the bathroom, as well as the fact that the aide left the patient alone.
The nursing home had later installed glove dispensers in each patient’s bathroom. However, the company requested that this information not be revealed to jurors, as it was considered a subsequent remedial measure per M.R. Evid. 407. The judge granted this request.
Still, the plaintiff’s attorney focused a great deal on whether gloves should have been provided to staffers and whether the facility properly communicated the patient’s care plan to the aide on staff.
The plaintiff again raised the issue of presenting the jury with evidence of the newly-installed glove dispensers, particularly after the aide testified that she didn’t carry gloves with her as a matter of choice because she feared it would spread infection. The court affirmed its earlier ruling.
When it came time for the jury to decide the issue of liability, the only issue was whether the aide was negligent in leaving the patient alone in the bathroom – not whether the care plan was effectively communicated to the aide and not whether the facility should have had more gloves readily available to the aide at the time of the fall. The negligent communication theory, the court reasoned, was not appropriate because the plaintiff’s attorney hadn’t brought it up to the prelitigation screening panel and it wasn’t alluded to in its notice of claim.
The jury sided with the defendant nursing home.
On appeal, the plaintiffs argued that the court erred in deciding to exclude evidence of the remedial measures taken by the facility and also on the lack of instruction on the issue of negligent communication.
In a 3-2 decision, the Maine Supreme Judicial Court affirmed the court’s earlier ruling, finding that the plainitff’s attorney had failed to present enough evidence indicating that the facility was negligent in communicating the care plan to the aide.
On the issue of the court’s suppression of the remedial measures evidence, the court determined this decision was properly reached.
If you are the victim of a Bangor nursing home injury, contact us at 1-800-804-2004.
Estate of Boulier v. Presque Isle Nursing Home, Feb. 13, 2014, Maine Supreme Judicial Court
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