The civil law is premised on the idea that community members need to act reasonably in their interactions with one another. Not all accidents can be prevented–some things are simply true accidents that involve fluke circumstances. But those incidents are the exception. When analyzed deeply, many accidents that cause harm include unreasonable conduct by one, two, or many different parties. Figuring out that unreasonableness and seeking to compensate those hurt is the root of the civil law.
That is true in all settings, including the care of senior citizens.
One misconception, however, relates to gauging what is or is not reasonable. There are not simple rules, because everything hinges on context. For example, take two similar accidents–a fall in the hallway. Both fall-victims are 67 years old, both falls were caused by the shoes that the person was wearing–they were too big and made it difficult for the senior to walk. One fall took place in an emergency room waiting room–the senior went there to get a few stitches for a small cut. The other fall took place in a nursing home hallway.
Both falls involved the same person and the same underlying cause (shoes), and both were in caregiving locations. Is the legal liability the same? No.
That is because those individual caregivers were not in the same position. Emergency room staff members likely had no idea about the senior’s fall risk, because the patient had simply showed up with a non-life threatening medical situation. Conversely, the nursing home staff members presumably knew the senior resident. They may, in fact, have been the ones who selected the shoes.
What would have been “reasonable” conduct on the part of the nursing home staff members to prevent that fall are much different than what would have been “reasonable” conduct by the emergency room workers. The specific context of the fall makes all the difference.
Dementia, Alzheimer’s, & Increased Accident Risks
Another factor that also affects these types of incidents is the caregivers knowledge of the senior’s particular mental vulnerabilities. For example, if a caregiver knows that a senior suffers from dementia, the “reasonableness” calculation changes even more. That is because those with dementia can be hurt in situations that would pose less risk for those will their full mental faculties.
Just last week the Sun Times posted a sad story on the death of an 80-year old elderly woman with dementia. The senior apparently drowned in a pond behind her own home. Details are still emerging as to how the drowning occurred. However, the woman was known to walk the trails in the area. She may have slipped or otherwise became confused, leading to the accident.
The case does not involve care workers, but it illustrates the unique risks faced by those with dementia. When a resident in a nursing home is known to have cognitive conditions like this, it is reasonable for those conditions to be taken into account when the care plan for the resident is crafted. Failure to create or follow that plan may result in legal liability following an accident.
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