Liability Landscape

Prepare for motorized conveyances at your facility

Although these devices can dramatically improve the lives of people who otherwise would be dependent on others for mobility, they do come with risks. Residents maneuvering in crowded hallways could hit walls, equipment, or slower-moving residents, staff, or visitors. The following situation occurred when two nursing home residents collided, one walking and the other riding on a motorized scooter. Please take the time to review the circumstances of this case and make changes as appropriate at your facility.

The Situation
A resident, riding on a motorized scooter, was shopping at a convenience store within the nursing facility where she resided. She recently purchased the scooter to assist with her limited mobility. As she was about to leave the store, another resident was walking past the entrance and the two collided. The sudden impact caused the ambulatory woman to spin around and land on her back on the floor. An employee witnessed the event and immediately phoned the nurses’ station for help. A nurse came right away and evaluated the injured woman. The nurse summoned an ambulance, which took the woman to a nearby hospital where she was treated for fractures to her left hip and elbow.

She underwent Open Reduction Internal Fixation (ORIF) surgery to her hip, had a cast put on her elbow, and remained hospitalized for a week. She eventually returned to the facility for rehabilitative therapy and received assistance with preparing meals, doing laundry, and conducting other personal care activities. She remained in constant pain and used a walker when ambulating. Because of an intense fear of falling again, she limited her outings. The resident sought legal counsel and her attorney notified the facility of their intent to sue, unless a demand for $600,000 was met.

An evaluation of the accident scene revealed that the lighting in the area was good and there were no defects to the floor, carpet, or doorway. The store had a hardwood floor and the hallway was carpeted. The entrance doors, made of glass with hardwood frames, remained open during business hours, so there were no obstructions in or around the doorway. Each person should have been able to see clearly into or out of the doorway. In addition, the doorway was wide enough for both residents to pass through without touching each other. However, it is customary in the store for one resident to give right-of-way to another resident.

Shortly after the accident, the woman operating the motorized scooter was interviewed. The woman said that she was at the doorway of the store with the nose of her scooter sticking out into the hallway. She firmly stated that she was not moving at all and, instead, the other lady was walking very fast and either fell or ran into her scooter. She also said that her scooter was new and that she had no problem passing a competency test that the facility had administered when she purchased her scooter.

At that time, the facility conducted a safety class in which cones were set up and “drivers” were required to maneuver their scooters through the cones. The facility does not own, maintain, or insure motorized conveyances; that is the responsibility of the residents who purchase them.

The injured woman stated that she was walking at her normal pace to a church service near the store. As she neared the entrance of the store, she was struck by the scooter. The woman stated that the resident on the scooter had her head turned to say good-bye to her friends and was not paying attention to what she was doing. The injured woman was adamant that she did not fall first and that it was the impact with the scooter that caused her to fall. She stated that she even yelled out just before the impact. She added that she felt and heard her bone break when she fell.

When asked about the theory of liability in the case, the injured woman’s attorney stated that the hallway was narrow, there were no mirrors on the doors, and there was a lack of supervision of residents who own motorized conveyances. The facility’s investigation revealed a regular-sized hallway that could easily accommodate different parties passing each other. And it was not practical to mount mirrors on every doorway, as there are too many in the facility. Nor did the facility owe a duty to supervise the residents on motorized conveyances, especially after their competency testing and past experience as licensed automobile drivers. As a result, the facility denied liability for the accident and a claim was pursued by the injured party against the scooter operator’s personal insurance carrier.

How to Protect Your Residents and Facility
As this case demonstrates, caregivers need to be alert to the possible risks associated with the use of motorized conveyances in their facility. With careful risk management planning, the benefits of these devices can outweigh the risks. Please keep the follow-ing tips in mind when developing your facility’s risk management policies on the use of motorized wheelchairs and scooters.

Develop facility rules pertaining to the use of motorized conveyances. Sample rules can include the following:

• There will be a maximum number of motorized scooters/wheelchairs allowed in the facility at one time. This number should be decided by the facility based on what it feels can be safely accommodated.
• The size and type of each wheelchair or scooter that operates within the facility must be approved in advance by the facility administration. The size of the resident’s room should be a consideration, as the wheelchair or scooter cannot interfere with the transfers and care provided by the staff.
• Only one person per motorized conveyance is allowed. No towing, pushing, or pulling of other objects or vehicles of any sort is allowed within the facility.
• All operators must maintain complete control of their own vehicle at all times. They must operate their vehicle so they do not endanger themselves, other residents, staff, or visitors.
• All operators must maintain safe speeds when traveling within the facility or on its grounds. Safe speeds are defined as no faster than the average walking speed of the other residents in the building.
• Motorized conveyances must, at all times, yield to pedestrians and appropriately to other conveyances, similar to the rules that apply when driving a car.
• Operators must avoid contact with fixed and moveable objects at all times.
• Motorized conveyances will not obstruct a roommate’s ability to come and go and use the facilities of the room in an appropriate and timely fashion.
• Motorized conveyances will operate only in authorized areas within the facility. They cannot be used during bathing or showering, although they may be used to transport the resident to the bathroom area.
• Operators of motorized conveyances will not leave the facility grounds on such conveyances, unless authorized.
• Operators must maintain their vehicle, or allow their vehicle to be maintained, in a safe and hygienic condition.
• Motorized conveyances will be parked only where authorized.
• Motorized conveyances can only be charged in designated areas and cannot be charged in a resident’s room.

Determine who is eligible to use the conveyance. Ask members of the physical therapy department to test the resident to ensure that he or she has the physical and mental capability to drive the motorized conveyance. Document results and save in the resident’s record. Sample eligibility requirements can include the following:

• The resident must have the cognitive ability to operate a motorized conveyance. By definition the resident must have no thought disorder and have a Folstein mental status score greater than or equal to 25.
• The resident must be without significant visual loss; that is, at least monocular, greater than 20/100.
• The resident must demonstrate the ability to operate a motorized conveyance, as determined by the physical therapy department.
• The resident must have the financial ability, or have a designated source of financial ability, to afford to purchase or rent a motorized conveyance.
• The resident must have a specific order from the physician, and such an order must be integrated through the resident’s care plan or service plan.
• There must be a demonstrated ability for the facility to absorb another motorized conveyance within its campus.

Clearly communicate the resident’s rights, privileges, and obligations. Ask eligible residents to read and sign an agreement of compliance. The following is a sample statement:

The resident has the right and privilege of the use of a motorized conveyance within the facility and on its grounds if he or she meets eligibility requirements and respects the rules and regulations of the facility pertaining to motorized conveyances and all other rules and regulations. He or she also must utilize appropriate safety measures and take into consideration the other residents, employees, and visitors at the facility.

Require liability insurance. Just like driving a vehicle, even the most careful drivers can get into accidents.

Monitor the resident’s use of the motorized conveyance. Train your staff to watch and make sure the resident remains competent and safe. Ask the therapy department personnel to retest the resident annually or whenever a significant change in health occurs. Document results and save in the resident’s record.

Mount wide-angle mirrors for sharp corners in your facility. This way, both walkers and drivers are aware when the other is approaching and can avoid collisions.

Determine facility responses to the abuse of motorized conveyance privileges. Because the operation of a motorized conveyance is never considered mandatory for the health and well-being of a resident, but rather is a convenience, the privilege of a resident to operate a motorized conveyance is determined only through the criteria established above and in concert with the multidisciplinary team’s care planning. The ultimate decision for use of a motorized conveyance at all times rests exclusively with the administration in consultation with nursing, the medical director, and the therapy department. Therefore, if the rules of the facility are being disregarded by the operator of the motorized conveyance, administration will reassess the situation and can limit or revoke privileges, if deemed necessary to ensure a safe environment.

For additional information regarding these components and to ensure that the vehicle remains safe, contact the wheelchair or scooter manufacturer, or your local medical supplier. It also is important to seek legal counsel to assist you in the development of your policies.

Contact Williams at (877) 448-4331, ext. 5175, or slc@guideone.com. More information is available on the Center for Risk Management’s Web site at www.guideonecenter.com. To send your comments to the author and editors, please e-mail williams1206@nursinghomesmagazine.com.