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The Battered Personal Injury Plaintiff

In 1997, I opened my own law firm after spending many years in a downtown Boston business litigation firm. Unlike many tort(personal injury) lawyers, I have always litigated and tried a wide variety of cases, including complex business cases, criminal cases, divorce and probate cases, zoning cases and personal injury cases. I have always considered myself a trial lawyer (a nasty moniker according to many) that was willing to look at any worthy cause and educate myself, if necessary, to be able to handle a given case, even in a new area of practice.

I didn’t need to be reminded, but an article in this weeks Massachusetts Lawyers Weekly reaffirmed my view regarding the importance of diversity in my law practice. The article is entitled “Odds against tort plaintiffs in Massachusetts”. The article described the percentage of plaintiffs’ verdicts in Superior Court in 2009, the land of jury trials. In Barnstable county, only 11% of verdicts were for plaintiffs, and in Norfolk (long known as a plaintiff minefield), only 14% of verdicts were for plaintiffs. The remaining percentages were Plymouth 22%, Bristol 32%, Middlesex 27%, Essex 36% (where I have had one of my most gratifying plaintiff verdicts), Worcester 23%, Hampden 29% and Berkshire 33%. In medical negligence cases that went to verdict, there were only11 plaintiff verdicts out of 95 trials.

Does this mean that all plaintiffs are “malingerers” or is there more at play here? In 28 years, I have never taken a case for a client that was not legitimately injured or did not have a viable claim for damages. However, there is also no doubt that various forms of insurance company propaganda ( i.e they don’t make money because of all the fraudulent plaintiffs’ and BAD trial lawyers out there), and media (the McDonald’s coffee case) have poisoned the jury pool, so to speak. Also, the fact that in Massachusetts, lawyers do not have the opportunity to question prospective jurors (voir dire) about their biases puts us in front of juries blind to any bias or prejudice that may not have been disclosed to the court during jury selection.

More trial judges are beginning to grant requests by lawyers to engage in limited forms of voir dire. Perhaps articles such as the one mentioned above will prompt more judges to grant these requests. As I often say in closing arguments, my injured clients are not looking for sympathy; only justice. In addition, we would be thrilled with nothing more than a level playing field. Of course, this will not change overnight, which is why I always tell clients that a fair settlement after a well prepared case is usually the best result.

Bruce A. Bierhans

Originally posted at InjuryBoard by Bruce Bierhans


Nursing Home Negligence

Falls in Nursing Homes

Litigators who work with cases involving long term care know how significant the issue of falls can be. Falls are the leading cause of injury and death by injury in adults over 65. Approximately half of the 1.6 million nursing home residents in the U.S. fall each year, and a report by the Office of the Inspector General found that about 10% of Medicare skilled nursing residents experience a fall resulting in significant injury; and, more than 1/3 of hospital falls result in injury. In the rehab setting, rates are often higher – for example, fall rates among stroke patients have been shown to be very high. Immobility and falls can lead to poor outcomes.

Fear of falling is defined as a geriatric syndrome. It not only occurs in older adults who have fallen, but in those with impaired mobility and is associated with decreased physical ability and depression. Care of older adults requires that clinicians be aware of the myriad of issues related to falls including knowledge of this syndrome, increased risk and interventions needed to prevent injury related to falls.

Just about every resident in a long term care setting, including assisted living and sub-acute rehab, is at risk for falling. Between medications, functional and medical issues and advancing age, older adults in most settings are prone to falling.

There are well established standards of care related to fall prevention; but, as I continue to review records related to issues like falls, I am amazed at how often these basic standards are not being practiced. The basics of a fall prevention program include assessment and ongoing reassessment of risk, ensuring a safe environment, medication review, providing therapy as needed, individualized interventions, and staff education.

Basic nursing practice includes assessment, planning (Care plan), putting interventions in place and then evaluating outcomes to determine if those interventions are appropriate and effective. Assessment includes completing fall risk assessments on admission and then as needed. Very often, the fall risk assessments completed by nurses in LTC are inaccurate. The tools utilized in long term care typically include these risk factors: history of falling, use of ambulatory aids, gait/balance issues, medications, secondary diagnoses (i.e. diabetes) and mental status. Care planning is the next step in nursing care - it is the standard of care that as the resident’s status changes, assessments and care plans must be updated, and often, are not. For example, with each fall, there should be updates, or if there is a new diagnosis, i.e. stroke, or worsening dementia, updated interventions should be put into place, with ongoing evaluation of effectiveness.

Care planning and interventions very often are generic and not individualized. For example, a toileting schedule that includes only after meals and before bedtime may not be appropriate. If a resident has issues with constipation or incontinence, this may lead to the need for more frequent toileting to prevent falls. The “make certain call bell is within reach” for residents with dementia is an example of a generic intervention. Older adults with dementia may not recognize a call bell or remember to use it. The debate about use of bed and chair alarms go on – they are a part of an individualized care plan, not a solution to preventing falls. Often, I see delays in putting interventions in place, i.e. with the resident who is incontinent NOT being put on a toileting plan immediately. The other common issue I see when reviewing records is the lack of updating care plans as the resident’s status changes – with every fall, with worsening dementia, physical decline, or new medical diagnosis (i.e. Parkinsonism).

Nurses reviewing records need to pay attention to the MDS, risk assessments, care plans and Interdisciplinary notes with attention to where the standard of care is not being met.
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6 days ago  ·  

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