Words from the other side: Lawyers, slips, and falls

You’ve probably got a defense attorney or two giving you advice on how to avoid liability in slip-and-fall cases, but wouldn’t it be great to hear from the other side? Imagine if a plaintiff’s attorney explained, "Here’s how to win when my client sues you."

Healthcare Risk Management found a plaintiff’s lawyer willing to give you that view from the other side, with some tips about how you can best avoid writing his client a big check. He knows what risk managers typically do wrong, so he can offer advice on what you should do instead.

P. Christopher Ardalan, JD, is a trial attorney in Sherman Oaks, CA, who often represents plaintiffs in slip-and-fall cases. His first words of advice: Never forget that you make an attractive target. "With a health care facility, you’ve got a much sexier argument for a jury," he says. "If I were making a closing argument, I’d say, Ladies and gentlemen, we go to a hospital to be helped and healed. The last thing we would expect is to go to this place we consider a safe haven and be exposed to this type of danger.’"

The health care defendant may be held to a higher standard than say, a grocery store. A hospital setting offers more of an emotional appeal that can inspire a jury to mete out some justice in the form of a large award to the plaintiff, he says. "Even if there is no legal differentiation in the case from a slip-and-fall in another setting, a good plaintiff’s lawyer who knows how to evoke the emotion of a jury will be able to clinch liability and evoke more emotion in the jury."

A large payout is also much more likely with a health care defendant, Ardalan says.

Prevention is first question

The first thing a plaintiff’s lawyer will look at is whether you could have prevented the fall, he says. A trial lawyer will want to see the sweep sheets, the records that show when floor surfaces were inspected and cleaned. For instance, Ardalan compares accidents in which people fall in a grocery store and in a hospital. In both cases, they fell because a liquid was spilled five minutes after the most recent floor inspection. The inspections are done every half hour, so the liquid remained hazardous for 25 minutes until the fall occurred just as the next inspection was scheduled.

"In the supermarket, that’s a tough case for the plaintiff, because 25 minutes doesn’t seem all that long for something to be on the floor and it may have originated from a customer spilling a drink or something similar," he says. "If you have a similar fact pattern in a hospital, you’re generally going to have better liability against the health care provider because the hazards are usually created by the hospital employees themselves."

In other words, a plaintiff’s attorney will be much more interested in the hospital case because — while both defendants could be accused of not cleaning up the spill fast enough — it’s easier to prove that the hospital staff caused the hazardous situation in the first place. Ardalan notes examples such as blood, vomit, or urine on the floor from health care activities, or spills from leaky equipment. Even floor cleaning efforts can create the hazard if too much water is left behind or warning signs are not used.

In a retail establishment, the defendant can rely largely on the sweep sheet defense: "We check the floors regularly, but that spill occurred in the interim. Therefore we were doing our best and can’t be held responsible."

But Ardalan says that defense won’t be of much use for health care defendants. "Even if the hazard originates from a nonemployee like a patient, you have nurses and others there who are charged with caring for that patient and they must take action when they see a floor hazard," he says. "They should call housekeeping and put up cones to keep people away."

So how does Ardalan decide whether to accept a slip-and-fall case against a health are client? He says there are two main questions to ask:

• Should they have caught that hazard and prevented the accident?

The answer is not always yes. Sometimes the facts of the case show that the provider did all the right things but still a hazard existed for some short period of time and the potential client was just unlucky enough to come by then. That’s the best position you can be in as the potential defendant, he says.

• How badly was the victim injured?

The worse the injury, the more this factor can overcome the first. To reduce your liability from slips and falls, Ardalan offers these tips from the plaintiff’s point of view:

1. Train staff in the special concerns of health care facilities.

When the plaintiff is in the business of caring for people who are infirm or physically challenged, it’s easy to prove in court that you should have taken more care to protect them from falls. "If you say you mopped the floor and put up warning cones, so the patient shouldn’t have fallen, I’m going to say, But you had six 85-year-old people who couldn’t see 2 feet and were using walkers,’" he explains. "You’re not going to argue that they were on their own and it’s their own fault they all broke a hip."

Those special obligations mean that risk managers should ensure staff are specially trained for preventing falls in health care settings, Ardalan suggests. Your maintenance staff may be experienced and might understand the need to prevent falls, but do they have experience in health care settings? If not, you might need to explain the particular concerns and what can be done. "What you can do for floor maintenance on a typical floor might not be right when you have a floor of elderly folks with walkers," he says. "But you can’t expect the maintenance guy to think about that if you don’t bring it up. For him it’s just another floor to mop."

2. Be sure staff respond quickly to floor hazards and document your prevention efforts.

Once a spill or other hazard is recognized, never leave it unattended. Mark it with signs, and if necessary, have someone stand over it until housekeeping can respond. Also be sure your sweep sheets or other documentation of inspections and cleaning are always filled out. Don’t let them become just another bit of paperwork that staff ignore, Ardalan says.

Caution employees about the danger of putting their initials on a sweep sheet without actually doing the inspection. After a fall, Ardalan will use that document to question just how negligent the staff was if they inspected the area four times — according to the initials on the sweep sheet, at least — and didn’t spot the hazard.

"That can be worse than just not doing the inspection at all," he says. "A risk manager might want to consider making that kind of false documentation a very serious offense. Their job should be on the line if they’re discovered doing this."

Angry victims sue

3. Never be rude to the victim.

You can avoid a lot of lawsuits by treating people better after the accident, Ardalan says. A good portion of the people who come to his office wanting to sue for slip-and-fall accidents are angry and resentful about how they were treated afterwards, he says. Many of those who were treated well never decide to sue. "When people are hurt, they want to see compassion, especially in a health care setting where they expect people to be caring," he says. "But the health care profession is notorious for having rude nurses, and that kind of treatment really upsets people when they already feel like a victim of your carelessness."

Ardalan advises risk managers to train staff that they should be helpful and sympathetic in such situations, but, at the same time, he admits that he would jump on the opportunity to use those words against you if staff sound too apologetic. The key, he says, is to express sincere sympathy and concern without admitting liability. "The best thing you can do is to try to make their stay easier, any little concessions to show that you care," he says. "Ultimately, you want them to walk away feeling like it’s not the right thing to go to a lawyer, rather than making that decision simple for them."

Ideally, the patient should leave feeling like the incident truly was just an accident and your staff did everything possible to treat them well and make up for an unfortunate turn of events. "You want them to say, How can I sue those nice people?’"

Don’t go overboard with niceties

4. But don’t make the victim suspicious either.

While you should be nice to the person injured in your facility, Ardalan says you also should be careful not to go overboard and give the victim any ideas about liability. It is possible that the victim thought from the start that the fall was no big deal and he or she is satisfied with how the staff responded. But if you then start laying on the niceties with a heavy hand, the victim may start wondering why.

That’s especially true if the risk manager breezes in with a big smile and offers another pillow. "They can get suspicious if they wonder why you’re going overboard with being nice," he says. "At that point, they might think they should sue you because you’re obviously afraid of being held responsible for whatever you did."

Ardalan acknowledges that risk managers and hospital staff have to walk a tightrope; be very nice to people after a fall, but not so nice as to make them wonder what the fuss is all about.

No rolling your eyes, please

5. Show some sympathy in mediation.

Ardalan says he has attended many mediation sessions in which the risk manager clearly was exasperated and unsympathetic to his client. Maybe there is some justification for feeling that way, he says, but for your own good you need to hide your emotions. "This is mediation. You’re supposed to try to come to some resolution of the dispute," Ardalan says. "Don’t roll your eyes and say rude things to the person who’s hurt."

If you feel compelled to defend your position vigorously or even to criticize the plaintiff, do it privately. Ask the mediator to meet with you privately and never say such things in front of the plaintiff. That only makes you look cold, and that will not help you in the mediation process.

6. Listen to your lawyers.

Ardalan also has seen risk managers who come to the table with their minds made up about liability and how much a case is worth, and then they ignore their lawyer’s best advice. "That’s good for me because it puts them at a disadvantage when they can’t recognize the dynamics of what is going on," he says. "There may be letters going back and forth between the lawyers, and your attorney might know more about law than you do."

Watch your lawyer work

7. But don’t leave everything up to your lawyer.

The risk manager should always attend the mediation sessions, he says. You may not actively participate much, but you need to see how your lawyer is handling the case. "If a lawyer is screwing up and they’re worried about losing the hospital’s business, they’re not going to report to the risk manager how they’ve done everything wrong," he says. "You need to see what’s going on for yourself."

Ardalan notes that, when a risk manager is present, the plaintiff’s attorney will direct most comments to him or her. They know that the facts of the case and negotiation may be different from what you have heard from your defense attorney. "Some law firms are notorious for their billing in litigation so they’re not motivated to settle anything early on," he says. "Pay attention and the plaintiff’s attorney might send you signals that settlement is possible, and that might be news to you."

8. Read the case materials yourself.

It is dangerous to rely only on the summary letters and reports from your own attorney, Ardalan says. "You can’t always assume you have the best lawyer," he says. "Or they may be a great lawyer but they’re not handling this case the way you want them to."

Don’t anger the jury

9. Consider direct discussions with the plaintiff’s lawyer.

Don’t circumvent your own lawyer, but if it appears the two attorneys are just butting heads and getting nowhere, Ardalan says it can be useful for the risk manager to speak directly with the other side. You may find that the plaintiff’s attorney is about to take the case to trial because he’s given up on any kind of agreement with your lawyer. "Some contact at that point can’t really hurt, and you might be able to reach some understanding before you take that next big step," he says.

10. Avoid the disingenuous defense.

Jurors tend to pay out a large sum in two scenarios. In the first, they see the defendant as having done something egregiously wrong. In the second, maybe the wrongdoing wasn’t so dramatic but the jury was offended by the defense strategy. "A lot of times you have defense attorneys who are handling a lot of cases for the insurer and they pick just a few dispassionate defenses that they repeat over and over," Ardalan says. "They get up in front of a jury and try to say the 85-year-old blind man in a walker should have watched where he was going. The jury gets so upset with the defense and says, You guys are just jerks.’ They express that with a big award to the plaintiff."