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M A R C H 2 0 1 6 | O U T P AT I E N T S U R G E R Y M A G A Z I N E O N L I N E
comes are different for the 3 cases, but there are a few factors that
can shape the categorization of the claim:
• Who fell? Most of the time, if someone other than the patient falls —
like a family member or escort — it's considered general negligence.
• Where did the fall occur? Areas common to the public generally tilt the
scales toward general negligence, while patient-and-staff only areas
are typically considered medical malpractice.
• Was there a medical standard of care involved? This can be complicated,
though normally if the patient falls as a result of a clinician's profes-
sional misconduct, it tends to be classified as malpractice.
Protecting yourself
To protect your facility from general negligence slip-and-fall lawsuits —
which, again, are easier for patients to win and can cost you substantially
more — set strict policies that follow industry standards to protect
patients. This professionalizes the applicable standards and brings the
case, in the event of a suit, into the area of medical malpractice. Note in
the second example in "Malpractice or Negligence?" that the hospital
had a policy stating that a nurse must escort patients to the restroom. As
such, this is a defined part of the nurses' duty of care. When these poli-
cies are in place, courts will usually readily classify a patient fall lawsuit
as medical malpractice. Make sure these policies are very specific, follow
industry guidelines and are explained clearly to staff and physicians.
Of course, one of the most obvious ways to prevent slips, trips and
falls is to ensure your floors are clean, dry and free of tripping hazards.
Don't neglect common areas, like your waiting room or near your
doorway, where visitors and patients are constantly on the move.
OSM
Dr. Stein (astein1@yu.edu) is a professor of law at Cardozo Law School in New
York City and has been published in several leading journals, including the Harvard
Law Review and Columbia Law Review. He covers developments in medical mal-
practice law at steinmedicalmalpractice.com.
