Liability Landscape

Keeping residents safe while on the go

The Situation
An 89-year-old woman was admitted to a nursing facility with a history of severe degenerative arthritis, congestive heart failure, hypothyroidism, depression, renal failure, asthma, anxiety, and obesity. The woman required the use of a Foley catheter and was dependent on staff to propel her in a wheelchair. She was alert and oriented and could effectively communicate her wants, needs, and concerns to staff members.

Within a few months, the woman developed a significant cough with congestion and was transported to the hospital by ambulance. At the hospital, x-rays indicated she had developed pneumonia and marked diffuse osteopenia, which left her bones brittle. She was successfully treated with antibiotics and returned to the facility, but she continued to have sporadic upper respiratory infections.

Over time, the woman developed a habit of leaning forward whenever she sat for long periods of time in her wheelchair. Her leaning contributed to several falls during the next four years. Fortunately, she was never seriously injured and always expressed an understanding when cautioned by staff about the dangers of leaning forward in her wheelchair. To minimize her need to lean, the staff made efforts to make items readily accessible to her while in her wheelchair. A “lap buddy” was even used on occasion.

One day, the woman was driven to a podiatry appointment in the nursing facility’s van. While returning to the facility, the van driver stopped at a drive-through restaurant to purchase some food for the woman to eat back at the facility. As the driver drove across a bridge nearing the facility, she heard the woman cry out that she was slipping from her wheelchair. By the time the driver could pull the van over, the woman had already fallen to the floor of the van.

At the hospital, the woman and her granddaughter were told that she had sustained bilateral tibia and fibula fractures. An orthopedic surgeon was consulted who felt that surgical intervention was not a viable option and recommended a course of bed rest and pain medication. Over the next few days, the woman suffered a marked decline in her respiratory abilities. She was not placed on any machines, because of her DNR status, and instead was treated with intravenous fluids, antibiotics, and a diuretic.

During her hospital stay, a sputum culture and sensitivity test indicated that the woman had developed an upper respiratory infection of Staphylococcus aureus, pneumonia, and a urinary tract infection of E. coli, Pseudomonas aeruginosa, and MRSA. The physician adjusted her antibiotics in response to these lab findings. After discussing the woman’s condition with her granddaughter, the physician directed the hospital staff to provide comfort measures only. The woman passed away five days after the accident. The cause of death listed on her death certificate was cardiopulmonary arrest, congestive heart failure, and hypothyroidism.

The nursing facility staff were devastated by the incident. The administrator reported it to the state regulating authority, which launched an immediate investigation. The driver told the state investigators that she was substituting for the person who normally drove the van, who was out sick on the day of the incident.

The driver said the woman’s wheelchair was fastened to the floor of the van in the appropriate manner. When the woman fell, the wheelchair remained secure, but the lap buddy that she used to secure the woman to the wheelchair had come undone because of her pressing weight and forward movement. The driver stated that she applied the lap buddy across the woman’s waist and around the arms of the wheelchair before securing it in the back of the wheelchair. Because of the woman’s size, the driver was not able to tie a complete knot at the back of the wheelchair.

When a larger-size seat belt was found stored in the van, the driver alleged that she had never been trained by the facility on the proper use of seat-belt restraints when transporting residents and was unaware of the other seat-belt option. The investigators issued a fine and citation to the facility, and an in-service was held the next day to educate staff on van transportation safety.

The Lawsuit
Soon after the woman’s death, however, her granddaughter filed a wrongful death lawsuit against the nursing facility. Neither party argued the fact that the facility was negligent for improperly securing the woman in the van, which led to the fall and subsequent fractures. Many factors contributed to this: There was no documentation (i.e., proof) of prior training, staff admitted guilt to surveyors (on public record), the administrator didn’t fully investigate the incident or take corrective actions until after the state investigated, etc. The injuries (broken legs) were egregious and the defense did not want the perception of a “cover-up,” which would have aggravated the case more. The courts in this state were favorable to large verdicts against nursing homes, and the plaintiff’s attorneys were famous for successfully suing them. Basically, the only truly arguable defense they had was to allege the death was not directly caused by the injuries. The true crux of this case was whether the woman’s leg fractures were responsible for or played a part in her subsequent demise. Four physicians were deposed to ascertain the facts:

• The plaintiff’s medical expert testified that the ultimate cause of the woman’s death was because of complications related to her bilateral fractures, likely a pulmonary emboli.
• The defendant’s medical expert argued that the woman could not have died as a result of a pulmonary embolism because this type of injury would have caused an immediate effect and not been delayed over a period of days. Instead, he believed that the pneumonia had begun developing before the woman’s accident but became significantly worse after her admission to the hospital, which ultimately led to her death. The physician referred to an increase in lung infiltrate taken upon her admission and several days after. He believed that the infiltrate was evidence of the pneumonia or congestive heart failure, or a combination of the two. The physician testified that because she was placed on intravenous fluids, it would have complicated either of the conditions.
  While the expert acknowledged the failure to have properly restrained the woman during the accident, he felt that her inherent physical conditions predisposed her to the development of a fracture. He stated that the fact that her osteopenic condition was noticeable from x-rays was evidence the condition was markedly significant.
• Another physician reviewed the case and agreed with the defense expert, except she surmised that the specific cause of the woman’s death was an MRSA condition that she developed at the hospital. The physician felt the woman subsequently developed sepsis as a result and died.
• The woman’s primary care physician was deposed and testified that he believed she died as a result of adult respiratory distress syndrome (ARDS), which could have been caused by congestive heart failure, asthma, pneumonia, or an embolism. He stated the only way to determine the exact cause of ARDS would have been to complete an autopsy, which wasn’t done.

The plaintiff’s demand for settlement was well over $1 million. Years later, the case was eventually brought before mediation and settled for $700,000.

How to Protect Your Facility
While each of the medical experts brought good arguments to the table, the most damaging fact remained that the woman passed away only five days after the fractures occurred. The defense could have argued that some of the cause of the fractures was from the woman’s osteopenic condition and her predisposition to fracture; however, the plaintiff would have asserted that the facility staff were aware of her delicate condition and should have taken special care to address her needs. Likewise, if her death was indeed caused by MRSA, the plaintiff could argue that the fractures were still a factor because she would not have gone to the hospital in the first place but for the fall. The plaintiff may further assert that the resident’s bed-bound status caused or contributed to the respiratory infection, or that the intravenous fluids she was receiving made her condition worse. Any way that you look at this case, there is no getting around the fact that if the woman had been properly secured in the van, she would not have died the way that she did.

You can protect your facility and residents from this type of tragedy by developing guidelines for the safe transport of wheelchair passengers and by providing appropriate training for implementation. The following guidelines should be considered:

• Consider implementing a drug-testing program for employees responsible for transporting residents.
• Equip vehicles with emergency communication devices, such as a two-way radio or cell phone.
• Complete motor vehicle registration checks upon hire and annually for all persons assigned to driving duties. Employees with unacceptable driving records or improper license classification should not be permitted to drive company vehicles until appropriate corrective action has been taken.
• Develop a preventive maintenance schedule for each vehicle, according to manufacturer’s recommendations. Keep a log of monthly inspections.
• Develop a visual checklist to perform routine safety inspections. Service vehicles as needed and keep reports and corrective action receipts filed with the vehicle maintenance records.
• Provide an appropriate number of staff to adequately meet the needs of the passengers while in route (e.g., residents at risk for seizures, dependent on oxygen, or confused and able to unfasten their safety restraints, etc.).
• Visually check equipment for proper working conditions before loading residents. Make sure safety straps are not frayed, torn, or broken.
• Always park the vehicle so that the wheelchair lift can be lowered to a flat area, away from traffic flow. Be sure that the lift area is unobstructed from branches, signposts, hydrants, etc.
• Instruct the operator to restrict personnel movement near the lift to avoid the risk of injury from contact with the lift platform.
• Move the wheelchair completely on the platform during loading, with the passenger’s hands and arms in his or her lap to avoid getting them caught.
• Set both wheelchair brakes and fasten safety restraints before raising the lift to the level of entry into the van.
• Always fasten restraints according to the vehicle’s manufacturer directions when transferring a wheelchair into the vehicle. The operator should verify that the wheelchair restraints provided on the van are compatible with both the resident and the wheelchair to secure the passenger in place.
• Keep the path of the safety straps clear between the floor track and the wheelchair.
• Start the vehicle only after all passengers are properly seated, safety belts are fastened, and wheelchairs are secured.
• Visually inspect the lift before unloading residents to ensure that it is in the up position.
• Keep a web cutter in the back of the van at all times where it is quickly accessible to cut the safety straps in the event of an emergency.
• Provide a certified driver-training course for employees assigned to this duty upon orientation and offer refresher courses annually and as needed. Obtain signatures of both the trainers and employees after satisfactorily completing the facility’s driver training requirements.
• Develop an audit system in which the fleet manager randomly travels with drivers to assess their skills and knowledge. Provide training based on needs.

Proactive risk management is an ongoing challenge, but all of the time and trouble is definitely worthwhile if accidents such as this can be avoided.