Legal Eagle Eye Newsletter for the Nursing Profession(4)13 Oct 96  PDF Version

 Quick Summary: Frail elderly persons are not themselves negligent when they fall.

 

   In a recent case a ninety-three-year-old nursing home resident with poor vision due to macular degeneration and glaucoma and whose mental state is slightly confused, fell and broke her hip because the staff of the nursing home neglected to assist her with walking while she is on an outing from the nursing home.   The Supreme Court of Nebraska refused to apply the legal doctrine of assumption of risk in the nursing home's defense to the resident's lawsuit for negligence.

   In this case, the nursing home van carrying this resident and others had stopped so the residents could use the restroom. The van was parked so that residents had to walk across an unpaved parking lot covered with loose gravel to reach the restroom.

   When the resident fell, the two staff members with the residents claimed they were busy, one making a phone call and the other checking the tires on the van.

   After the resident fell, broke her hip, and sued the nursing home for negligence, the nursing home tried unsuccessfully to argue that she had assumed the risk of falling, by starting out on her own across the parking lot.

   To argue successfully in court that an injured party has assumed the risk and is not entitled to sue for damages, the party defending the suit must prove that the injured party fully appreciated the danger he or she was encountering, and voluntarily and unreasonably went forward to encounter the danger.

   The court ruled it is inappropriate for the law to consider frail, elderly, confused nursing home residents with visual impairments themselves at fault when they fall because caregivers fail to give residents the assistance they require. Williamson vs. Provident Group, Inc., 550 N.W. 2d 338 (Neb., 1996).

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