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Liability Landscape

December 1, 2006
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Prepare for Motorized Conveyances at Your Facility by Linda Williams, RN
LIABILITY landscape

Prepare for motorized conveyances at your facility Medicare payments for power wheelchairs and scooters amounted to $299 million in 1999. By 2003, sales had tripled to more than $1 billion. While no one knows exactly how many senior living community residents use motorized wheelchairs or scooters, these conveyances are becoming increasingly prevalent in many facilities.

Although these devices can dramatically improve the lives of people who otherwise would be dependent on others for mobility, they do come with risks. Residents maneuvering in crowded hallways could hit walls, equipment, or slower-moving residents, staff, or visitors. The following situation occurred when two nursing home residents collided, one walking and the other riding on a motorized scooter. Please take the time to review the circumstances of this case and make changes as appropriate at your facility.

The Situation
A resident, riding on a motorized scooter, was shopping at a convenience store within the nursing facility where she resided. She recently purchased the scooter to assist with her limited mobility. As she was about to leave the store, another resident was walking past the entrance and the two collided. The sudden impact caused the ambulatory woman to spin around and land on her back on the floor. An employee witnessed the event and immediately phoned the nurses' station for help. A nurse came right away and evaluated the injured woman. The nurse summoned an ambulance, which took the woman to a nearby hospital where she was treated for fractures to her left hip and elbow.

She underwent Open Reduction Internal Fixation (ORIF) surgery to her hip, had a cast put on her elbow, and remained hospitalized for a week. She eventually returned to the facility for rehabilitative therapy and received assistance with preparing meals, doing laundry, and conducting other personal care activities. She remained in constant pain and used a walker when ambulating. Because of an intense fear of falling again, she limited her outings. The resident sought legal counsel and her attorney notified the facility of their intent to sue, unless a demand for $600,000 was met.

An evaluation of the accident scene revealed that the lighting in the area was good and there were no defects to the floor, carpet, or doorway. The store had a hardwood floor and the hallway was carpeted. The entrance doors, made of glass with hardwood frames, remained open during business hours, so there were no obstructions in or around the doorway. Each person should have been able to see clearly into or out of the doorway. In addition, the doorway was wide enough for both residents to pass through without touching each other. However, it is customary in the store for one resident to give right-of-way to another resident.

Shortly after the accident, the woman operating the motorized scooter was interviewed. The woman said that she was at the doorway of the store with the nose of her scooter sticking out into the hallway. She firmly stated that she was not moving at all and, instead, the other lady was walking very fast and either fell or ran into her scooter. She also said that her scooter was new and that she had no problem passing a competency test that the facility had administered when she purchased her scooter.

At that time, the facility conducted a safety class in which cones were set up and "drivers" were required to maneuver their scooters through the cones. The facility does not own, maintain, or insure motorized conveyances; that is the responsibility of the residents who purchase them.

The injured woman stated that she was walking at her normal pace to a church service near the store. As she neared the entrance of the store, she was struck by the scooter. The woman stated that the resident on the scooter had her head turned to say good-bye to her friends and was not paying attention to what she was doing. The injured woman was adamant that she did not fall first and that it was the impact with the scooter that caused her to fall. She stated that she even yelled out just before the impact. She added that she felt and heard her bone break when she fell.

When asked about the theory of liability in the case, the injured woman's attorney stated that the hallway was narrow, there were no mirrors on the doors, and there was a lack of supervision of residents who own motorized conveyances. The facility's investigation revealed a regular-sized hallway that could easily accommodate different parties passing each other. And it was not practical to mount mirrors on every doorway, as there are too many in the facility. Nor did the facility owe a duty to supervise the residents on motorized conveyances, especially after their competency testing and past experience as licensed automobile drivers. As a result, the facility denied liability for the accident and a claim was pursued by the injured party against the scooter operator's personal insurance carrier.

How to Protect Your Residents and Facility
As this case demonstrates, caregivers need to be alert to the possible risks associated with the use of motorized conveyances in their facility. With careful risk management planning, the benefits of these devices can outweigh the risks. Please keep the follow-ing tips in mind when developing your facility's risk management policies on the use of motorized wheelchairs and scooters.

Develop facility rules pertaining to the use of motorized conveyances. Sample rules can include the following: