Mike Walsh, AIC, CPCU. Liability Claims Manager
Steve Johnson, COSS, CHSP, COEE. Senior Risk Consultant
When it comes to investigating general liability incidents on healthcare facility property, adjusters have seen it all. The difference between a favorable or unfavorable investigation often comes down to the facility employees who respond to the incident.
Adjusters often hear statements such as:
“An employee helped me up and said ‘people are falling in this spot all the time.’”
“An employee said that they’ve been asking for someone to fix that section of sidewalk for some time now. Maybe they’ll do it now that I’ve fallen.”
For an adjuster investigating a fall on healthcare facility property, a casual comment on the incident by employees or visitors may become an admissible piece of evidence. If confirmed by the employee in question, such a statement can have a possible adverse impact upon the investigation. While hearsay exceptions for statements made contemporaneously with an accident/incident do exist, facility employees should pay particular attention to interactions with visitors during an accident or fall.
This, of course, also works in reverse. Many times, an employee who attended to a fallen visitor will advise that the person stated:
“It’s my fault. I just tripped over my own feet.”
“I was on my phone and wasn’t paying attention.”
Employees need to write any such remarks made by a visitor down as a direct quotation in their follow-up incident report. If more than one person heard the remarks, identify all of the witnesses in the report. Comments uttered at or very near the time of the incident may be admissible and have a significant impact on the investigation.
In addition to tracking incidents that occur in their building and grounds, healthcare facilities should also pay attention to “near-misses.” A “near-miss” is defined by OSHA as an “incident in which no property was damaged and no personal injury was sustained, but where, given a slight shift in time or position, damage or injury easily could have occurred.”
For example, if a facility employee sees a visitor walking toward the front entrance who stumbles but does not fall due to an uneven area between two sections of the sidewalk, that information should be communicated to the appropriate person with subsequent documentation as to why or why not any corrective measures were taken.
The courts have continually acknowledged that, for commercial businesses such as healthcare facilities, schools, and shopping centers, it is impossible to have perfectly even sidewalks and parking lots. The question is whether or not a facility has “constructive notice” of “open and obvious” environmental hazards that present danger to pedestrians. The observations and actions of employees who walk the building and grounds regularly can be invaluable in preventing incidents at your healthcare facility.
Creating and training employees on sound policies about securing surveillance video footage after an incident or alleged incident cannot be over-emphasized. Surveillance videos and photographs are invaluable evidence of an incident if they are collected and preserved promptly.
For example, a current case features a plaintiff who presented several photos purporting to be the area where she fell. It did show a possible unreasonable defect in the facility’s handicap ramp. However, the surveillance video, while corroborating that she did fall, made clear that she did not fall in the same area of the photographs, but in an area where there were no defects.
As a general rule, always secure copies of a reasonable time frame from surveillance video for before, during, and after an incident. Secure these copies in a safe place for at least 18 months.
Frequent inspections of your healthcare facility building and grounds should be done to reduce the risk of an injury occurring due to a hazard going unnoticed. Multiple employees should be involved so there are multiple sets of eyes looking at things differently.
When a hazard is identified, either it should be fixed immediately if possible, reported to the appropriate people so it can get fixed as soon as possible, and/or educate the person that might have created the hazard unknowingly. If a hazard has been encountered that cannot be fixed immediately, either zone the area off or install some caution signage to alert visitors that there is a hazard.
Thoroughly training employees on hazard prevention, how to report a hazard, and how to respond should an incident occur at your facility are vital when it comes to general liability incidents. Employees are a valuable resource that, with proper training, can help protect themselves and visitors when an incident occurs.