PROTECT PATIENTS Make sure you have strict policies in place to help reduce the risk of patient slips, trips and falls.

If a patient slips, trips or falls while at your facility, does it count as medical malpractice? The answer is not as simple as you might expect. Depending on the person, how she fell and where she fell, you could be sued for either medical malpractice or general negligence. Whether a lawsuit is judged as malpractice or negligence can be crucial to your facility's success in court. As you'll see, you're better off with a medical malpractice suit.

For starters, medical malpractice suits have several burdens the plaintiff must meet, including a shortened statute of limitation or statute of repose, as well as expert testimony or certificates of merit, which makes these cases harder to bring and prosecute against healthcare facilities. Medical malpractice suit damages are also capped in many states, which reduces your financial risk. General negligence cases have no such restrictions.

For these reasons, plaintiffs typically want their cases categorized as general negligence, though it's usually in the facility's best interest to have a medical malpractice suit brought on instead. For that reason, we see a lot of litigation over this categorization issue, especially when it comes to cases involving slips, trips and falls.

Decided case-by-case
As you'll see in "Malpractice or Negligence" on the next page, slip, trip and fall cases are often decided on a case-by-case basis. The outcomes 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 professional 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 policies 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

YOU MAKE THE CALL
Malpractice or Negligence?

?

Here are 3 examples to demonstrate the differences among these kinds of cases. You make the call: Is it medical malpractice or general negligence?

— Alex Stein, PhD

General negligence
The visitor fell in a public area due to negligence of the facility (the wet floor mat).

1 A patient's family escort arrives at the hospital to see the patient in recovery. When entering the hospital's reception area, the visitor slips on a wet mat and hurts herself. She sues the hospital for negligence, but the hospital argues she must meet the special requirements for medical malpractice suits. The court sides with the visitor and categorizes the suit as general negligence.

Medical malpractice
Patient fell while being cared for in PACU — even though facility had a policy in place for caring for patients who needed to go to the bathroom.

2 A patient undergoes a minor procedure and is in recovery when he has to use the bathroom. Though facility policy requires the nurse to escort him, she lets the patient go alone as he says he feels fine. As he starts to move, the patient becomes dizzy and falls. The court rules that the complaint constitutes medical malpractice.

Medical malpractice
When the court believes that aiding the patient in getting down from the bed is within the provider's professional standard of care, it will rule it as potential medical malpractice.

3 A patient is receiving an MRI. At the end of the imaging procedure, the staffer instructs the patient to get up and step down from the procedure room bed, without offering any additional assistance. As the patient stands up, he slips. A lower court rules that it's medical malpractice, while an appeals court says it might be general negligence. The patient was injured in a patient-only area, but sometimes courts linger on the question of whether the action — in this case, a patient stepping down from a bed — requires professional help, or if it's an action the patient should inherently know how to do while receiving non-professional assistance or even no assistance whatsoever.