How to Approach a Nursing Home Fall Case
Are nursing home fall cases a legal minefield or a chance for justice? Understanding liability is crucial. In this week’s episode, nursing home abuse attorney Rob Schenk welcomes guest Phil Rizzuto to discuss effective strategies and legal considerations for attorneys handling nursing home fall cases.
How to Approach a Nursing Home Fall Case
Schenk: Approaching nursing home fall cases. Stick around out there.
Welcome back to the nursing home abuse podcast. My name is Rob. I will be your host for this episode today. We’re talking about how to approach a fall case, a nursing home fall case. Typically what are the defenses? What are some of the documents or what is some of the evidence that you might want to look for?
And a little bit later, we talk about framing these cases, like what is the overarching or what is the driving force behind how we tell the story, but we’re not doing that alone. We had the fantastic trial lawyer, Phil Rizzuto on the program, and we’ll get into how I found him when we talk. It’s a funny story.
Alright folks, let’s get into my favorite part of the episode, which is the meat and potatoes. As I mentioned, we’re not doing this by ourselves. We’re talking to the fantastic trial lawyer, Phil Rizzuto. Phil Rizzuto known for his relentless advocacy against big insurance offers a unique perspective as a personal injury lawyer with a background in defense.
This insight benefits clients injured due to negligence. While he has successfully represented major insurance carriers and government entities, he also champions individual’s rights. His cases have garnered national media attention and he’s been featured on Fox news channel and local networks. The Rizzuto Law Firm has earned recognition as the top personal injury law firm in the Long Island choice awards.
And we are so happy to have Mon Phil, welcome to the show.
Rizzuto:
Thank you. Glad to be here.
Schenk:
So Phil, I found you on TikTok. You’d have a lot of educational tiktoks, you have a lot of funny tiktoks. I’m not making any judgments about you, but you and I are of a certain age. How are you so good at TikTok? I don’t understand it.
Rizzuto:
So covid happened. Before covid half my practice was doing insurance defense work. The other half was doing plaintiff’s work and out of the plaintiff’s work I did a lot in nursing home neglect cases. Only 50 percent insurance defense, 25 percent general negligence, 25 percent nursing home neglect and abuse.
COVID comes, they shut down the course and the courts. And my defense, the defense work I was doing was all trial work. So my firm, I had about 17 employees March 1st of 2020. And by May 1st, we were down to about five. I was trying to figure out what my future was going to be and what the future of my firm was going to be.
And I got involved with a marketing company who was really pushing making videos and YouTube, TikToks, Instagram reels. And the mantra was just do it. Don’t worry about making it perfect. And it’s the wave of the future for attorneys. And if you told me five years ago, this is what I’d be doing.
I’d say, you’re out of your mind. I’m not doing it. I think it’s stupid. And I still think there are a lot of, a lot of stupid TikToks from attorneys, and my goal was to want to provide value. Writing value is always the goal, but to be myself and for better or worse, it is what it is. So I want to be myself and I’m, I don’t like the attorneys that are out there and they’d be like, Hey, if you fall, call me, or if you’re in a car, and they’re all just self promotional commercials.
And one of the things I do a lot of is the nursing home neglect. And I developed a pretty decent following by doing those videos. So when I do not everything is a legal video. Not everything is a nursing home neglect video. I do some general home neglect as well. I do car accidents. I do falls, but I always wanted to provide value.
And sometimes I’ll just do something stupid, do a video outside a nail salon and ask people whether or not they think men should get manis and pedis.
What are common defenses to nursing home fall cases?
Schenk:
I remember that one. So I think it’s a misconception that just because somebody is an effective trial lawyer, that they’re going to be good on camera.
And that’s not the case because there’s, as you mentioned, a lot of terrible attorney tick talks. Yours is not one of them, but at the end of the day, We’re not here for tick tock. We are here to talk about your approach to nursing home fall cases. I’ve had several episodes about fall cases and or falls in nursing homes.
In other words, what are the characteristics that make somebody have an increased likelihood of a fall? What are some interventions that we can do? How does the care we’ve talked about all that. Today, I want to really focus on the actual bringing forward of the case from a, from an attorney’s perspective.
And especially with your defense background too, this is very interesting to hear. So the first kind of, the first question that I would have for you, what do you find are the typical defenses to the average nursing home fall case? And what I mean by that is the person was old and sick and dying anyway, or the person is, we can’t prevent every fall, things like that.
What do you see typically?
Rizzuto:
All of the above. They lie. Typical defenses are that a lot of the residents have dementia, so they’ll say it’s unavoidable.The residents are causing their own injuries. We can’t restrain them. They have a right to fall, and we’re doing everything that we can do in order to watch them, but we’re not required to be with them 24/7. The arguments that they make are usually the same, regardless of the type of case it is, whether it’s somebody has dementia and they’re falling, whether it’s somebody who’s there for a short term rehabilitation and they’re falling they all deflect blame. And it’s usually all of the above.
I said that they’ve done everything right. They followed all their protocols. And it’s the resident who just is causing their own problems.
Schenk:
Where do you see the breakdown typically in the nursing process that is most often the cause of the falls?
Rizzuto:
They do not have the proper staffing to provide sufficient care for nursing home residents, whether it’s a nursing home, an acute rehab, a short term rehab, whatever it is, they do not have enough staff to provide the proper care. That being said, when somebody comes in and my arguments are either you didn’t assess them properly, or you didn’t follow the care plan that was put in place after you did assess them.
And again, the first thing that’s supposed to happen when you go into a nursing home is they assess you. They assess you. What is your fault? What is your fall risk? What is your risk of getting pressure ulcers? And they have these scales. So if somebody comes in. Let’s say they have a hip replacement and they’re going in for rehab.
They should be assessed as a high fall risk and they should be put on a two person assist. I saw it happen with my stepmother. She had a stroke in November part of her, when she had the stroke she went down, she broke her right ankle. They treat her in the hospital. She gets sent to an acute rehab facility.
The first day they drop her, she’s supposed to be a two person assist because she’s had a stroke on her right side and the break in her foot is so bad, she can’t put any weight on it. So two people are required to move her. And one person thinks I can do it myself. And they won, they dropped out.
Luckily. Injury is not as bad as it could have been and shouldn’t break anything, but she had a hematoma on her leg that was horrific. And luckily it healed and got better, but it’s not completely better because she still has a scar from it, but she didn’t break anything and it didn’t get infected to the point where you’re talking about amputating the leg, which happens in a lot of our cases.
But it’s just I don’t have the adequate staffing, and if they had adequate staffing, having another person there to move them, it would be no issue. And having sufficient staffing. If somebody has an incident and you see there’s a problem, you’re allowed to adjust the care plan to say, Hey, you know what?
Maybe we should take heightened measures. And there are so many things that Any facility, hospital, nursing home, rehab, whatever it is can do to prevent falls from, making the bed low, making, putting alarms on, in these cases where the dementia patients are getting up. And they just, they don’t do it.
And I believe the underlying problem is the staffing.
Schenk:
I think that it’s, obviously it’s unfortunate, but your family member that I think you said was your aunt. That’s great, that’s a great example of the bridge that we as attorneys on the plaintiff side need to demonstrate of understaffing resulting in the fall and not just understaffing or not just the fall.
So in that instance, they don’t have enough people. And so this individual takes it upon him or herself to move your aunt. And that results in the fall or it could be a resident hitting the call light because they have to go to the bathroom and nobody comes because there’s not enough people.
They get up. to go to the bathroom when they fall, or it could be a resident that’s a high risk for wandering, not enough people. So they don’t do the they don’t do the rounding as often as they should. So I, you’re right that understaffing is a critical component to most nursing home cases. But I think that sometimes we might lose sight of just because they’re understaffed is not the battle.
Like you have to show what understaffing did, how did understaffing cause the actual injury that your loved one or the client received?
Rizzuto:
Oh, 100%. And like you said, that’s one of the big problems is that it should be the resident should be on a toileting schedule and They’re hitting the call button, nobody’s coming to help them, and the resident can’t take it anymore, and they get up on their own, and they fall, and you look at what the care plan is, how often are they supposed to be toileted, and is it documented, and, Most of, unfortunately, most of my cases, the people that are injured are not capable of really telling you the story.
I have very few cases where somebody would be able to come in and say, Oh, I was hitting the call bell and they didn’t come, so I got up and this is what happened. I’ve had a few of those cases, but they’re very rare, so most of the time you have to look at the records, the toileting schedule, you have to look at where the person fell.
Because that’s important, and usually it’s between the bed and the bathroom. Sometimes it’s actually in the bedroom. And you reverse engineer in order to prove your case.
What are some key documents to show liability in a nursing home fall case?
Schenk:
That actually is a, that leads me to a really good segue to the next question. And you mentioned ADL documentation, like toileting programs and things like that.
Rizzuto:
There were three main documents that we would look at. The first thing is the ADL. Care plan activities of daily living care plan. What is the resident capable of doing on their own?
What are they not capable of doing on their own? And what is the plan to accommodate that? The other is the initial risk assessment. So they come in. And they have to be assessed, what is it you can and you can’t do? What is your risk for falls? What is your risk for developing bedsores? And they take the person’s whole medical history into place.
They come up with an assessment. They come up with a care plan. And then once the incident happens, you want to see the incident reports. The incident report will then tell you what happened. A lot of times it doesn’t. They’ll just say the resident was found on the floor. Again, you want to find out who found them, when they found them and where they found them.
Was it between the bed and the bathroom? The assumption is they will go into the bathroom. Sometimes it’s in the hallway. So I had a case. Last year, which settled right before trial, where the resident was getting up. She didn’t like being in her room. They put her in a wheelchair.
She was supposed to have bed alarms. She fell nine times. Nine times in the span of six weeks. Wow. And on the last fall, she was in her room in a wheelchair because she didn’t want to be in the common area where she should have been so they could watch her. And she got up. They found her on the floor. No, they didn’t find her on the floor.
Miraculously this 86 year old woman who was in there for rehab, but she broke her left hip in April. She falls out of the wheelchair, breaks her right hip, and is able to get back into the bed within a 15 minute window that they were doing checks on her regularly. So in that 15 minute span between checks, she was able to fall, break her other hip, and get herself back in bed.
Schenk:
Okay. All right. Wow. Okay. So we have the mobility assessments, ADL sheets and incident reports. Do you tell me about any struggles? Do you have any issues? Because typically at least in Georgia their family is allowed to write a complaint and receive essentially a summary of the investigation of the complaint.
Although that never ever happens. So if there’s a fall and the family in Georgia complains theoretically under the regulations in Georgia, they should receive something. It might not be an incident report, but it should be a summary of what happened and what they did about it. But other than that, the family would never get an incident report, at least in my experience, outside of litigation.
So do you ever receive any pushback when you say to the nursing home, hey, I want the incident report, if any, for this particular fall?
Rizzuto:
Yes. Even in cases that are in litigation, they resist giving it to us. And sometimes we have to get a court order. They’ll say it’s material prepared in anticipation of litigation.
So we’re not entitled to it. And if we are entitled to it, they’re entitled to redact certain portions of it. But we’ve been successful in getting them because the arguments are really it’s somewhat ridiculous because how else are we supposed to prove a case, especially if the resident doesn’t have dementia, eventually they pass on by the time, we’re well into the case and they pertain pertinent information and even the ones that pertain little information is very telling.
So in the case that I was just telling you about where the woman had fallen nine times. After the eighth fall, the incident report reflected that they were going to modify the care plan and finally give this woman a wheelchair alarm. So the wheelchair alarm, if it’s in place, is supposed to go off.
So on the ninth fall, they’re claiming that the wheelchair alarm was in place and it went off and by the time they got there, she was already, got herself into the bed, the actual incident report said the cause of the fall was failure to have proper monitoring, which to me meant that they did not put the wheelchair alarm at, but they resist and we have to, and we have to fight to get it, they’re key documents to see, who found them, when they found them, where they found them and whatnot.
Schenk:
Definitely we get work product privilege. We get a copy. So that’s quality assurance and performance improvement objections. I didn’t know if that was the same in New York or not.
Rizzuto:
Similar. It’s similar. Yeah. Cool.
What are some ways to frame nursing home fall cases?
Schenk:
So tell me Phil, how do you typically go about framing your fall cases?
What is, what’s the story that you tell?
Rizzuto:
The story we tell really focuses around the nursing home because the reality is most people don’t care about your client. And in order to get to a jury and to get through to a jury, you have to make them realize that. This is a societal problem because of the nursing homes and the understaffing.
And not only is it a case about my client and what happened to them, this is gonna happen to everybody, and one of the interesting things about doing videos on social media is getting to see different people’s perspectives because not everybody is oh, let’s go get the nursing homes.
There are people out there that believe lawsuits are bad. They believe litigation attorneys are bad, and everybody’s just out to make a buck, and the families are out to make a buck, and they blame the families for putting their parents, their grandparents, whoever it is in these facilities, and they’re like if you could have did a better job, you should take care of them, and the reality is these facilities get paid they take on these residents with the understanding that, they’re going to get paid and that they have the ability to care for them. So whenever I’m talking to a jury, you’re trying to frame the argument. It’s more about. The actions of the nursing home and the inactions because rarely are they truthful.
They blame the families. They blame the residents. They don’t contain proper documentation and Like I said earlier, they either improperly assess these people when they first come in or they assess them and then they’re just not doing their job and taking care of them. And there are so many precautions that can be put into place to minimize the risk of these falls and the injuries to the residents, and they’re just not doing it.
And that’s the, that’s what you have to stress. In order to, get through to the people and prove these cases.
Schenk:
It’s almost, and I’ve mentioned this before, but on this podcast, Carl Bettinger’s book is essentially the hero’s journey. So like you’re identifying, the nursing home was like once upon a time there was a nursing home and they didn’t do what they were supposed to do.
And then one day my resident, my client went into that nursing home where they weren’t doing things right. And this is the result of it. Like it’s not what the family did. It’s not what the resident did. It’s what all the things that a nursing home did leading up to the residency of your client.
And I always think that’s one of the more powerful ways to frame the cases. Phil, I really appreciate you coming on and talking to us. I’m sorry about all the technical snafus that we had. Hopefully those will be edited out and no one will be none the wiser. What is your, what, I guess for lack of a better word, your handles, like, where are we going to see you on Instagram?
How do we see you on TikTok? Do you know what those are?
Rizzuto:
Yep, those are very easy. Then my name is Phil Rizzuto Esq. and on YouTube, it’s a Rizzuto Law Firm.
Schenk:
Very good. And again, I give the stamp of approval filled to your tick tock, your online presence. I really appreciate it. And love to have you on some other time too, to talk more about nursing home cases.
Rizzuto:
Let me know. I’m happy to do it. This was fun. I’ve never been invited to do a podcast before. So anytime you want to sit down and talk about nursing homes or anything else, you let me know.
Schenk:
I hope you found this episode educational. I most certainly did. If you want to actually reach out to Phil, I’m sure he would love to hear from you.
You can either call him at 855 Rizzuto, or you can catch him on Instagram at Phil Rizzuto Esq. I’ll have a link to his Tik Tok, his Instagram in the show notes. Again, you should follow or subscribe or whatever the kids are doing and follow him on Tik Tok because some of his Tik Toks are pretty funny.
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