Limiting Your Practice’s Liability for Slips, Trips, and Falls
As a medical practitioner, you have likely seen patients who have been injured, some quite seriously, by a fall. An uneven sidewalk or water droplets on a tile floor may seem like small issues, but they can turn into big ones quickly. Whether you own your own medical practice or are part of a larger organization, you want to be aware of potential premises liability for slips, trips and falls that might occur at the practice.
Bottom Line:
“In a busy practice, it’s important to follow good procedures to ensure safety. Some ways to minimize your liability are to ensure timely maintenance, that proper warnings are placed, and necessary safety precautions are taken. Staff should be trained to keep a continuous look out for fall hazards. And if someone does report falling at your practice, be sure to gather all the information you can.”
Slips, trips, and falls are one of the leading types of personal injury cases in the United States. In 2017, the CDC estimated unintentional falls were the leading cause of injuries treated in the emergency department for all ages except ages 10-24 years. According to the Kentucky Injury Prevention and Research Center’s March 2024 Findings from the Kentucky Communities to Support Older Adult Falls Programs Assessment, there were 44,569 fall-related visits to Kentucky emergency departments just for Kentucky residents older than 64 years.
Falls can and do happen in physician practices. In 2022, Cooperative of American Physicians members reported eleven falls within their office settings. Premises liability claims can result in large awards, depending on the severity of the injuries. According to the Kentucky Trial Court Review’s 2023 Year in Review, from 2013 to 2023 the average plaintiff’s premises liability award was $178,741.
If a premises liability claim is brought in Kentucky because of a slip or trip and fall, the plaintiff must prove the existence of four elements: 1) a legal duty, 2) a breach of that duty, 3) that the breach caused injury, and 4) damages. For this article, let’s focus on the first element and what you should know about your responsibilities in these cases. In Kentucky, a business owner’s legal duty is dictated by the legal status of the injured individual. The different legal statuses are “invitee,” “licensee,” and “trespasser.” (If a fall occurs while a patient is receiving treatment, the claim may instead be categorized as a malpractice claim, which has different responsibilities.)
A business invitee is an individual who enters by invitation in connection with the business and for the business’s benefit, such as a patient or friend/family accompanying a patient. Business owners have an obligation not only to take care of known hazards on the property but also to check for hidden safety issues and take affirmative steps to keep invitees safe. A business owner has a duty to maintain its premises in a reasonable safe manner by taking reasonable steps to discover, prevent or warn of hazardous conditions. Hazardous conditions that can result in litigation include spilled substances, slippery floors, rumpled carpet and mats, cluttered walkways, irregularities in the floor, equipment blocking hallways, untreated snow and ice, and unmarked steps or ramps.
A licensee is someone who has permission to be on the property but enters solely for his or her own purposes, such as a pharmaceutical sales representative. A business owner has a duty to avoid harming a licensee and to warn of any hazardous conditions known by the business owner.
A trespasser is an individual who does not have permission to be on the property, such as a former banned patient. A business owner does not have a duty to protect a trespasser from a hazard, but instead has a duty to avoid trying to intentionally harm them.
If the facility or property is being leased, terms of the lease could potentially shift duties owed to visitors.
To minimize liability, it is best to assume every visitor is a business invitee. Due to Kentucky’s adoption of comparative fault, the “open and obvious” nature of a hazardous condition, such as a large puddle of spilled soda in a lobby, no longer eliminates an owner’s duty to invitees. In Kentucky, the likelihood of obtaining a dismissal of a lawsuit by arguing an open and obvious condition is very slim. Only under the right circumstances can such a dismissal be obtained, such as if the plaintiff’s conduct in the face of an open and obvious hazard is so clearly the only fault of his/her injury that dismissal is warranted. Two examples given by the Kentucky Supreme Court for such a dismissal are when a situation cannot be corrected by any means or when it is beyond dispute that the owner had done all that was reasonable.
In a busy practice, it is important to follow good procedures to ensure safety. Some ways to minimize your liability are:
To ensure timely maintenance, that proper warnings are placed, and necessary safety precautions are taken. If floors are to be mopped or waxed, caution floor signs should be used and remain in place until the floors are dried or non-slippery. Door mats should be used and inspected to make sure they do not become a fall hazard by bunching up or becoming saturated with liquid.
Staff should be trained to keep a continuous look out for fall hazards, including dropped medical supplies or electrical cords. Fall prevention can include marking the edges of steps or elevation changes, adequate lighting, slip-resistant surfaces in high-risk areas, effective drainage, ventilation to keep surfaces dry, handrails, frequent cleaning, good housekeeping practices, and noticing and marking slips or trip hazards.
If someone does report falling at your practice, be sure to gather all the information you can, including photos of the area, a narrative of what happened, and the reason for the visitor’s presence there. It’s important to notify the practice’s insurance carrier in a timely manner, as well as be proactive in investigating the fall, including saving and reviewing any security footage of the person while he/she was on the property and identifying any factors that contributed to the fall. You’ll also want to develop a plan to reduce the chances of a similar occurrence. Be cognizant that Kentucky is a one-party consent recording state, thus conversations can be recorded by the injured person without one’s consent or knowledge. Anything you say to the person might be recorded for later.
In summary, to reduce the risk of being liable for a fall at the practice one should begin by identifying hazards within and outside of the facility that could cause a potential fall and remove or warn of them, establish clear policies relating to maintenance and housekeeping. Be sure to train staff on how to handle slip and fall situations, and if a fall occurs, perform thorough investigations of the circumstances leading up to and during a fall to understand the cause and build a strong defense to protect the practice against premises liability.
Joshua J. Owen is an insurance and civil litigation attorney with Sturgill, Turner, Barker & Moloney, PLLC. He can be reached at jowen@sturgillturner.com or 859.255.8581. This article is intended as a summary of state and/or federal law and does not constitute legal advice.
This article originally appeared in the Lexington Medical Society October 2024 Newsletter. It is intended as a summary of state and/or federal law and does not constitute legal advice.
