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Dangerous Bedrails, Old Age and Litigation

On the front page of the New York Times on November 26, 2012 (www.nytimes.com) appeared an article that discussed the dangers of bedrails used in nursing homes, hospitals and other facilities. This "add on" or free standing attachment to the bed serves to assist patients in getting in and out of bed and to protect them from rolling out of bed. An alarming number of patients have become trapped in the space between the lower horizontal edge of the bedrail and the top of the mattress which in some instances have led to strangulation and death.

The most disturbing aspect of the article is that this defect in the bedrails has been known since 1995 and little has been done about it other than the promulgation of some "voluntary guidelines" issued by the Food and Drug Administration that instructs hospitals and nurses on the use of bedrails. Such warnings have little effect upon the confused and elderly patients who are often the victims of this defect.

According to the article there have been reported over 36,000 incidents over the past 9 years where patients, mostly elderly, were treated in emergency rooms with bedrail injuries. Since 1995 there have been 550 bedrail related deaths. Last year alone 27 people died as a result of bedrail incidents.

It seems clear that many of these injuries and deaths are avoidable if proper attention were focused on this problem. In some instances inexpensive safety straps can be applied to prevent patients from sliding between the rail and the mattress. More careful surveillance by the hospital staff may be required. Certainly, the dangerous equipment should be recalled or retired.

Although contemporary design modifications significantly reduce the dangers of bedrail injuries many facilities still use the outdated equipment and manufacturers have resisted providing more detailed warnings. Although the FDA issued "guidelines" as to manufacturing parameters, it refused to issue any mandatory proviso that requires design modifications or recall.

So we have a situation where there is a known danger, a relatively easy fix which may be somewhat financially burdensome to manufacturers and healthcare institutions, and people who are dying, yet not much is being done. Why? The answer may very well be because the victims are for the most part elderly people for whom recovery in the civil justice system would have limited financial impact on the insurance industry and manufacturers. Quite simply put, the value of the life of an elderly person confined to a nursing home is comparatively minimal. The litigation costs associated with the injuries and death are seemingly less than the costs to fix the problem.

When a similar issue presented that involved defects in the design of baby cribs, the manufacturers have been quick to recall the product and to make design changes at the drop of a hat. Why? Is it because a lifetime injury to an infant may place the manufacturers and their insurers at much greater financial exposure than an injury to a senior citizen? Or is it because the public outcry is louder?

It seems obvious that the civil justice system, which holds manufacturers and institutions accountable for negligent injury to others, is the only meaningful recourse available to the injured and their families.

Personal injury cases involving elderly people, whether based upon medical malpractice or general negligence, ordinarily command a more modest recovery than cases involving younger people. One of the reasons for this is that the injury is a function of the person's life expectancy -- that is, the award for pain and suffering is a function of how many years the injured person will continue to endure the injury.

It seems that in recent years courts and juries have shown an increased respect for the elderly. Juries are willing to award damages that reflect an understanding of the torment of the elderly when their independence is negligently snatched from them or when they are left in a state of irreversible and ongoing pain. Fortunately we have a civil justice system where even people of modest means have an opportunity to be heard, particularly when the manufacturers and the "rule makers" refuse to protect them.

Steven E. North, Esq.
www.north-law.com