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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Personal Injury Law
Satisfied Customers: 16108
Experience:  Licensed Texas General Practice Attorney
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Is there grounds to sue a hospital if they let a "high fall

Customer Question

Is there grounds to sue a hospital if they let a "high fall risk"patient fall that resulted in death? My father hit his head causing bleeding of his brain the resulted in death within hours.
Submitted: 1 year ago.
Category: Personal Injury Law
Expert:  ScottyMacEsq replied 1 year ago.
Thank you for using JustAnswer.
I'm sorry to hear about your situation, and my condolences on your loss. I understand that this is a very tough time and I do wish you the best in this time of grieving.
It's not enough to show that a high risk patient fell. Actual negligence would need to be shown. And the "burden of proof" would be on you (or the estate acting as the plaintiff). Now your father being a high risk patient makes it more likely that there was negligence involved, because that necessarily means that there would need to be closer interaction with the patient by the hospital staff. But that does not necessarily mean that negligence was involved. Rather, it would need to be shown that there was failure of the duty of care or the breach of the duty of care, as recognized in this field (medical care) that no reasonable person would have done what happened.It also has to be a "but for" causation, in that but-for the negligence, your father would not have fallen and sustained injuries leading to his death. Now I am assuming that he was advanced in age, or otherwise was suffering some condition that rendered him otherwise "high risk" to the point that he did not have a long life expectancy to begin with. In such a matter, to be honest, you probably wouldn't have much of a case. That is, even if you could prove malpractice and negligence, it might not be an "economic" case worth pursuing. In short, yes, you can sue. But the mere act of suing does not mean that you're going to win. Anyone can sue anyone for anything. A lawsuit is merely a legal complaint. It does not require that the person be right when the suit is filed. That is what the judges are for: making determinations of law. What you really need to win a lawsuit is a "cause of action" that you can prove, damages that can be proven, and an attorney that will take the risk to take you on as a client. The complexity of medical malpractice cases is so high that even a general practice attorney should not attempt them, much less someone representing himself or herself "pro se" (without an attorney). And while an attorney might take such a case on an hourly basis, that would quickly become very expensive for you and would most likely not result in enough to even cover those fees. Malpractice claims do not allow for attorneys fees and costs to be paid by the losing party, so your fees need to come from the award of damages, otherwise you will have a loss.
There are two types of main, monetary damages: actual and punitive. Punitive damages apply in situations where there was intentional tortious behavior or gross negligence. Punitive damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will in fact receive all or some portion of the punitive damage award. Actual damages are damages that are intended to compensate the plaintiff for damages actually incurred by the plaintiff, rather than to punish the defendant. Now under the category actual damages, you have economic and non-economic damages. Economic damages are the actual, out of pocket damages suffered by the plaintiff. This will include property damages (damage to a car in a car accident, broken equipment, etc...), lost wages as a result of losing a job, or being out of work, in the hospital, etc..., medical bills, rehab bills, and even future medical bills (if applicable). These are actual, quantifiable numbers. Then you have non-economic damages, which are more "fuzzy". These are pain and suffering, mental anguish, loss of companionship, and so forth. This is where you get compensated for the pain that he suffered, even though you can't actually "quantify" that pain. Now the problem with non-economic damages is that they are hard to quantify. If he suffered an amputation, you should get a lot more non-economic damages, because that is going to significantly affect your life, for the rest of your life. But if you have suffered something that is not chronic, but temporary, that is going to adjust the number downwards, because it is not going to be a lifelong issue, and would not constitute the disfigurement that generally is compensated in greater numbers in court.
Another factor that would be considered is life expectancy. While I understand that some individuals are very vibrant and healthy long into their old age, courts will take into account the actuarial tables (the average life expectancy for someone that age, rather than taking into account his specific circumstances).
And as such, any award for loss of life expectancy would be rather minimal for someone who is older and in poorer health (than someone who would be younger and still in relatively good health), I'm sorry to say.
So while it is very much possible to pursue this and win, as it could be a pretty strong case as far as liability is concerned, I'm sorry to say that it would be very expensive to actually sue them. I don't think that an attorney would take this on "contingency" (not seeking hourly fees but a percentage of the awarded damages) because of the likely low amount of damages for the reasons I stated above). Contingency cases are very risky to begin with, and those are typically only taken when liability is pretty clear AND the damages are high enough such that the expected value after taking into account the risk of losing such a case (and as a result getting nothing, but with all the expenses incurred) still net a positive result. And I'm afraid to say that this is almost never the case in elder medical malpractice situations, mainly because of the low loss of life expectancy award.
I would, however, complain to the Oklahoma Medical Board (http://www.okmedicalboard.org/complaint) . They'll conduct an investigation to see if there's really anything there. It is possible that they could uncover "gross negligence" (which is much more severe than simple negligence) and in such a case it could result in "punitive damages", which might make an otherwise uneconomical case worth bringing. Furthermore, this is the best option to cause changes, as the complaint could cause individuals to lose licenses or at least be suspended or caused to go on some sort of probation. I know it's nothing in light of your loss, but it might help prevent this from happening again.
I know this is probably not what you wanted to hear, but it is the law. I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, ***** ***** luck to you!

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