By Pearl Schaikewitz, JD
Legal Consultant, Atlanta
News: A jury awarded $1.04 million to the family of a woman who died from burns she sustained in a California facility. The patient, who a history of bipolar disorder, was using a lighter to open a package of crackers.
Background: The 56-year-old woman had been admitted to the convalescent home on Sept. 1, 1996, for treatment of a recurrent leg infection. She was admitted with several diagnoses, including uncontrolled diabetes, obesity, hypertension, and a history of bipolar disorder. Her admitting orders allowed her to have two breaks per day to smoke. Eleven days after she was admitted, she used her cigarette lighter to try to open a package of crackers. When she set fire to the plastic wrap, it flashed, and her nightgown caught on fire. Staff put out the fire and called 911. The patient was taken to the hospital but died 10 days later from the burns.
The patient's family claimed the home should have known the patient was a danger to herself because of her history of bipolar disorder. The family also argued the home should have taken the lighter away from her; the home waited 17 minutes before calling 911 and then failed to report that a patient had been injured in the fire; and the home's failure to timely and accurately report the fire was evidence of a coverup, showing recklessness and neglect with fraud or malice.
The home denied any attempt to cover up the incident. It contended the patient's physician had attested she was capable of maintaining her lighter and staff called 911, an ambulance, the patient's treating physician, and her family as soon as possible after the fire was extinguished.
What it means to you: Residents in a long-term care facility are generally much less capable of self preservation than most hospital patients, notes Steven S. Wilder, BA, CHSP. He is corporate director of risk management for Provena Senior Services in Kankakee, IL, and a partner in Soren sen, Wilder & Associates, a safety/security consulting firm in Bradley, IL. He is also a founding member and past president of the Illinois Society of Healthcare Risk Management, as well as a deputy fire chief, an Illinois licensed paramedic, and a certified fire instructor with the Illinois State Fire Marshall.
He offers this advice: "Long-term care residents, in general, need more attention than most patients to assure their safety and survival. Additionally, we cannot lose sight that the long-term care facility is not just a facility for medical care. To the residents, it is home, and as such, efforts must be made to allow them to enjoy the same privileges any of us would in our homes, providing they do not present a risk of injury to themselves or others.
"The background on this case does not indicate where the resident obtained the lighter. I hope the staff did not give it to her. Given her history of bipolar disorder, I cannot imagine any profes -sional health care provider allowing her to knowingly keep a cigarette lighter on her person or in her possession. While the physician's orders addressed the smoking issue, I would be equally curious to know if the facility had a policy or procedure in place that weighed the resident's right to smoke against the resident's right to be free from the risk of incendiary fires or similar hazards. Even if the physician felt the resident could maintain her own paraphernalia, the facility still had the obligation to determine if the condition of the resident presented an unreasonable risk of harm to others, and if so, to act accordingly to prevent a loss from occurring.
"Certainly this resident was not the only one who smoked. Were all of the residents allowed to possess smoking paraphernalia in their rooms? If the facility had a policy prohibiting residents from keeping smoking paraphernalia in their rooms, did the facility have any method of monitoring compliance with the policy? Were residents who were known smokers monitored any more closely or more frequently than nonsmokers?
"I am also curious about the gown the resident wore. Was it a 'personal' gown, or was it issued by the facility? Did it meet any fire resistive standards? Accordingly, did the facility have any type of fire suppression or smoke detection system in place? If so, did it activate? If not, why not?
"Finally, I am concerned about the allegation that the home waited 17 minutes to call 911. That is an unreasonable amount of time to wait to summon help. In all disaster preparedness training, activating the emergency response system is one of the first things that should be done when an emergency is discovered."
Audit processes suggested
Wilder offered the following suggestions for facilities wishing to avoid a similar tragedy:
- Review existing policies and procedures on the storage and issuance of smoking paraphernalia to residents.
- Comply with Joint Commission standards on smoking.
- Develop "audit" processes to monitor efficacy of policies and procedures, and include appropriate corrective responses when policies are found to be ineffective, impractical, or unenforceable.
- Attempt to educate families of residents on all of the facility's safety policies and the logic and reasons behind them.
- Train staff members and physicians on safety policies and educate employees how to respond when physicians' orders countermand the best interests of the residents and the employees caring for them.
REFERENCE
Livingston v. Grand Park Convalescent Hospital, Los Angeles County (CA) Superior Court, Case No. BC 177-783.
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