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Working With Complex Rehab Patients: Some Legal Risks and A Few Suggestions
By Brad Howard, Attorney
Suppliers of complex rehab equipment are susceptible to liability claims for issues they may not even foresee. The purpose of this article is not to outline every liability risk, because an entire issue of Directions could not cover them all, but instead to address some of the legal theories commonly raised by plaintiffs and their attorneys in complex rehab litigation throughout the country. Although it will not be the focus of this article, I would like to address one case because it is representative in the sense that it includes several of the legal theories commonly leveled against companies and individuals which service the needs of complex rehab patients. I am not assuming any of the allegations in this lawsuit are true, and in fact the defendant adamantly denied them all. Instead, I merely intend to focus on what is alleged against the defendant, because any of you could be in court one day answering similar allegations.
ONE FINAL WARNING: this article may not make you feel much better, but hopefully it will make you a little more aware of both the risks you face in this industry and some proactive steps you can take in an effort to avoid liability.
Last year, a lawsuit was filed by a father alleging that his son, who was receiving wheelchair repair services, was killed by the defendant’s negligence. In this lawsuit, the family sought damages in excess of $10 million. It is a catchy and very large figure, and perhaps that was one motivating factor for including it in the original lawsuit filing. Specifically, the lawsuit claims the defendant should be responsible for this individual’s death, as well as other injuries and deaths caused by alleged negligent maintenance of wheelchairs in the past. The plaintiffs alleged two repairmen at the direction of the defendant provided wheelchair services for a young man in his home. They further alleged the repairmen failed to remove the young man from the wheelchair while they attempted to repair it and failed to disconnect the wheelchair’s battery while the work was being performed. They claim the wheelchair “jumped” and caused the young man to get pinned under the table he was sitting at. The lawsuit claims the young man then began to have uncontrollable seizures and died.
The complaint filed in court by the young man’s family included a very serious allegation stated as follows:
COUNT THREE-NEGLIGENT TRAINING, SUPERVISION, CONTROL, DIRECTION AND RETENTION
In this section of the complaint, the plaintiffs alleged the defendant “had a duty of ordinary care…to properly train, supervise, control, direct and retain the employees...with respect to the maintenance of their equipment. As a result of their breach of their duty of ordinary care, defendants injured the plaintiffs, and plaintiffs are entitled to damages” in the total amount of $10,000,000. The primary legal allegations necessary to support such theories include: that the supplier hired unfit employees, failed to exercise reasonable care to train or supervise the employees, and the employer’s negligence was the reason for the bad result, such as an accident involving a client. In the referenced case, plaintiffs would likely argue the employees should have been trained to follow certain procedures, such as disconnecting the power source, ensuring the patient was transferred before the repair work was done, etc. They would likely claim the employer’s failure to train the employees in such safety protocols caused the accident for which the employer is liable. The defendant would undoubtedly avail itself of any applicable defenses if, for example, the employees were in fact contractors under the control of a different employer, the patient’s family failed to account for his transfer from the chair prior to the necessary repair (and perhaps the company was reluctant to transfer him since an accident there would arguably be their fault as well), unavoidable accident, etc.
Lawyers also commonly assert claims for liability when a patient falls during transfer. In one representative case, the plaintiff alleged, during a transfer, employees of the defendant, “failed to provide the necessary and appropriate assistance to the plaintiff, resulting in his fall to the floor.” Other cases include allegations that a company should be legally responsible for “failure to follow the plan of service regarding the mandatory use” of protective equipment and failure to properly secure the patient.
Therefore, in some cases the plaintiffs claim companies should be liable for failing to train their employees, who allegedly allow accidents to occur, and in other cases the plaintiffs allege a company’s failure to follow its own safety protocol is enough to make them liable when a client is injured during a transfer. Finally, I am aware of allegations that an employee can be liable for improperly touching a client during a transfer.
Sadly, even the best of companies find themselves in court defending their actions. The earlier case is a primary example of the fact that an unfortunate result can land your company in court, where it is up to you to prove you did nothing wrong. However, a company can take certain steps in an effort to ward off liability claims. First, it is imperative your company has safety procedures in place to address all foreseeable situations which could lead to accidents or other losses. Second, any company in the complex rehab industry must properly and regularly train its workforce to follow all safety procedures. Third, you should consider retaining an industry consultant to review your policies and procedures, as well as your training protocol, and advise your company about additional measures to prevent liability-causing accidents. Fourth, you should consider any potential liability scenarios to ensure your company operates safely. Just for example, do you screen your employees who will be driving as part of their work responsibilities? Do you have policies in place to ensure they will not be texting or attending to other company business while driving for you or attending to patients on your behalf? Finally, you should discuss your liability concerns with your insurance agent to ensure you have adequate insurance coverage to protect you in the event of an accident.
Lawsuits and liability claims are an inevitable part of the business environment for many companies, and even the best companies cannot reasonably anticipate every situation that may land them in court. But if you seek advice about issues that make your company vulnerable, properly train your employees, and ensure all company safety policies are reviewed and enforced; perhaps you will only have to read about lawsuits against others and never experience one up close and in person.
These written materials are not intended to be legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. The law pertaining to the issues addressed by these written materials may have changed since these written materials were submitted. The reader should consult his or her own attorney for legal advice.