The majority of liability claims against senior living and care settings comes from falls, so operators that don’t have protocols in place to document interventions face a host of financial, reputational, medical and litigation risks, according to a panel of legal experts speaking Tuesday.
Technology company SafelyYou, which reported in its 2022 State of Falls inaugural report last year that falls cost the US health system $50 billion a year, hosted a webinar on mitigating fall risk in senior living and the legal implications of fall-related incidents.
The average cost of liability claims across all aging services settings has increased since 2018, with assisted living claim costs continuing to exceed those in skilled nursing, according to a 2022 report from Chicago-based insurance company CNA.
That same report showed that falls-related allegations are the most common in assisted living compared with other settings, with the average assisted living falls-related claims cost at $239,074 in 2021, up from $224,300 in 2018.
To combat those increasing costs, the experts said that leveraging proven interventions and technology to keep residents safe can lower those costs and improve the well-being of both residents and communities.
“Every fall is a chance to document your expertise,” SafelyYou founder and CEO George Netscher said.
Setting expectations
Mitigating risk starts with setting realistic expectations with families and residents. Providers failing to create realistic expectations regarding falls is something Joel Goldman, a partner with Hanson Bridgett LLP, said he sees often.
Austin Elkin, senior vice president of healthcare professional liability for Berkshire Hathaway Specialty Insurance, said that falls prevention is really about fall mitigation. Rather than touting a falls prevention program, Elkin recommended talking to families about providing a safe setting for their loved one where staff members are on hand to respond more quickly when a fall occurs.
And when falls occur, it’s important to communicate what happened with the family, he said. If a family moves a loved one into a community due to concerns over falls and members don’t hear anything, they assume those falls are no longer occurring and that their problems are solved, Elkin added.
That lack of communication can aggravate families and “put them in a state of mind where they might want to retaliate,” he said. Communicating also gives operators the opportunity to explain what they’re doing to prevent incidents from occurring again or from resulting in serious outcomes for the resident, Elkin said.
“When you create unrealistic expectations, you’re going to have very disappointed clients who are going to make your life miserable,” Goldman said.
Reputational damage for an assisted living community is another layer of risk that can arise from falls, and that damage can be insurmountable, according to Holly McMurray, Cogir Senior Living’s executive vice president of care and compliance.
“With our tech-savvy society, our prospects are looking up our compliance status,” she said. “If there is significant evidence of lack of responsiveness to falls or an increased fall presence within a community, that can deter them from wanting to explore living in your community in the future.”
States also are increasing their focus on fall reviews, McMurray said, with regulators taking a closer look at a community’s intervention strategies, communication with family and staff members, and involvement of residents in their own interventions.
“Falls seem to be moving higher up the priority list with our surveyors,” McMurray said.
The risk of doing nothing
The panelists touted the value of implementing falls prevention programs and responding to the data those programs provide.
From a licensure, regulatory and risk management perspective, Goldman said, unwitnessed falls — especially for a memory care resident found on the floor — create the assumption of a fall with head trauma. That assumption results in the transportation of the resident to the hospital and creates a cascade of negative ramifications for that resident.
“There are layers of impact when you send a resident to the hospital who doesn’t need to go,” McMurray said. “Add in complications with someone living with varying stages of dementia and the emotional impact is with that resident for weeks after.”
Falls prevention technologies, the panelists said, can provide insight into what happened, including whether a fall really occurred, and provide the ability to respond to a resident’s needs. Fall prevention strategies also can have a financial impact on communities if unwitnessed falls lead to serious injuries or the mistaken transfer of someone who doesn’t need it to a higher level of care.
“In an occupancy-challenged environment, as we’re all trying to move past the impacts that COVID had, keeping that back door closed and not having to discharge residents who truly are appropriate for your setting can have a profound impact on the financial wellness of an organization,” McMurray said.
