Court affirmed that a nursing home had breached its obligation to make a user consult a doctor after the user's fall accident

The following shows a case where a user of a nursing home (hereinafter called "X") fell down when X tried to get off from a courtesy car of the nursing home and X filed a suit for damages against the nursing home on the ground that the nursing home was obligated to promptly make X see a doctor.

The court judged that the nursing home (hereinafter called "Y") was obligated to ensure safety of X against foreseeable specific risks. The court affirmed default of Y on the point that Y did not promptly make X see a doctor, although the court determined that the staff member of Y (hereinafter called "A") was not blamed for X's fall when getting off the courtesy car on his own while A was helping another user in wheelchair to get on the car. (Judgment by the Tokyo District Court on May 20, 2013)

• Page 67 of Hanrei Jiho No.2208

Summary of the case

Plaintiff:

X (user of the nursing home)

Defendant:

Y (nursing home)

Parties involved in a suit:

A (a staff member of Y)
B (a staff member of Y working as a nurse)
C (a person on night duty for the accommodation facility)

X (aged 87 at the time of the accident) started to show a sign of dementia around 2001. X's nursing case level in 2004 was "Needed Support". X often had a delusion of being stolen and took actions like repeatedly issuing the same bankbook. In addition, he began to refuse to take a bath.

In order to decrease a care burden, X's guardian concluded a contract with Y on October 28, 2004 for X to be provided care services for visiting and using Y. X began to use the services as of November 1, 2014.

On November 29, 2009, X used the care services at Y and around 16:00 got on a courtesy car from the side-entry for himself in order to move to the annexed accommodation facility.

Among users of Y on the day, five persons including X were going to stay at the accommodation facility. The pickup service was provided by two staff members (A and B).

X sat right behind the driver's seat, so A told X to fasten the seat belt.

Then, A walked toward a rear-entry for wheelchair to help another user. When A tried to help the user to get on the car, A heard X's voice "Ouch!" and saw X falling down when X trying to get off the car (accident of this case).

B was assisting another user near the entrance of Y with his back turned to the car.

A noticed the accident hearing the voice of X and ran to X. X said "My right leg hurts". A and B made X stand up and took off his clothes to see the root of his right leg and low back, but they did not find anything abnormal such as external injury, heat sensation, nor swelling. X expressed pain every time he walked, but X was able to walk for himself. Since B working as a nurse did not give any instruction, A did not think X was in urgent need of medical help and drove X to the accommodation facility.

After arriving at the accommodation facility, X still expressed pain while walking. A checked his body again but didn't find any abnormality, so A decided to make X stay there to wait and see. While staying at the accommodation facility, X went to a restroom for himself around 19:00 on the day. X had restless pain in his low back since the aforementioned accident. C was going the round every two hours in the accommodation facility and happened to see the status of X.

Next morning, X more strongly expressed pain in his leg than the previous day. Accordingly, X was sent back to home around 10:00 and then was taken to an orthopedic hospital. X was diagnosed as fracture of the neck of the right femur and was hospitalized in a general hospital to undergo a surgery of femur head replacement. On December 2 in the same year, X underwent the surgery.

X filed a suit for about 13 million and 700 thousand yen damages against Y claiming that X had fell down because Y had breached its obligation to ensure safety of X through careful watch, etc. and that X had suffered from physical and mental pain because Y had neglected its obligation of promptly making X see a doctor and X was left at the accommodation facility being injured.

Reasons

1. Obligation of the nursing home

The contract made between X and Y mainly aims to provide care services for visiting and using Y based on user's overall situation in daily life and requests with a view to enabling user's independent life at home as much as possible depending on each user's ability in accordance with the Long-Term Care Insurance Act.

It is reasonable to construe that Y was obligated to ensure safety of X against foreseeable specific risks based on user's ability to the extent necessary under the structure meeting the standard of personnel allocation specified by the Act under the contract.

2. Fall accident

Although X was forgetful suffering from dementia at the time of the accident in November 2009, X's nursing case level was "1", the mildest level among 5 levels. It was difficult to foresee the sudden action of X trying to get off the car within a short time when A was helping another user to get on the car. It cannot be said that A lacked attention as a caregiver who turned away from X while helping another user when X was sitting in the car for a while.

It cannot be construed that Y was obligated to constantly watch over X not to fall. It cannot be said that the accident was caused by Y's breach of obligation of considering safety.

3. Obligation to make X have a necessary medical checkup thereafter

It is construed that Y is obligated to promptly consult a doctor and make X to have a necessary medical checkup if X is in life-threatening status or in physically abnormal status under the contract, by which Y agreed that in case of sudden change in X's medical conditions and in other cases in need of help while providing care services, Y shall notify X's family members or emergency contact persons and shall take necessary actions such as promptly contacting an attending doctor or a dentist. Y who had undertook these services for caring X was expected to properly manage safety of X's life and body.

It should be said that Y was obligated to consult a doctor no later than around 19:00 on November 29 when C happened to know X's painful condition, and to make X to have a necessary and appropriate medical checkup based on the doctor's instruction and cause of pain.

Despite the fact that it was easy for A to get necessary information on X's condition from C (a person on night duty for the accommodation facility), A did not take this kind of action and made X stay at the accommodation facility till next morning. It is undeniable that Y breached the aforementioned obligations to X under the contract.

4. Damages to be compensated

It is construed that if Y (A or C) explained circumstances of the accident and X's post-accident condition to a doctor to seek cause of X's pain and to get advice on necessary care, Y could get instruction to fix the portion with pain (fractured portion) of X and to make X have a necessary medical checkup. Therefore, it should be said that Y is liable for paying damages due to the default concerning physical and mental pain generated by the status that X could not have a proper medical treatment for the fracture of the neck of the right femur till next morning. It is construed that the damage is no less than 200 thousand yen (In light of demand for compensation for damages caused by torts, the amount would be up to the reasonable amount of damage close to 200 thousand yen.).

Explanation

1. Significance of this judgment

With regard to accidents occurred under contracts for admission or use of nursing homes, several judicial precedents already exist. This judgment adds a new case to these precedents. It is commendable that the court denied Y's fault in X's fall in light of X's condition. It is reasonable that the court affirmed that Y had breached its obligation to make X see a doctor and to take other necessary actions.

The level of due diligence required for nursing homes depends on conditions of users or residents. In case of caring a person with advanced dementia, it is possible for a nursing home to obligate to make the person see a doctor to be sure when he or she encounters accidents including fall even if the person does not express pain. This judgment considers physical and mental pain due to inability to have proper medical treatment without delay as damages. This judgment can be a reference for similar cases in the future.

The following shows relevant precedents as references.

2. Fall accidents

In a case under a similar contract for using a nursing home where a user of the nursing home woke up from a nap and fell down when a caregiver looked aside from the person, the court judged as follows: "Under the contract, users are expected to be elderly persons with physical and/or mental disabilities who are difficult to live independently at home. The business is obligated to understand conditions of users to provide care services to enable users to lead an independent daily life as well as to ensure their safety when providing care services based on the users' disability conditions recognized by the business". Moreover, there is a precedent where the court affirmed liability of a nursing home which lacked attention for a user (reference precedent (1)).

There is also a court decision which affirmed liability of a communal daily long-term care home for dementia patients concerning an accident that an elderly user fell down from a bed and got injured on the grounds that the care home had obligations of considering safety under a contract by taking necessary measures not to pose a hazard to a user's life and body (reference precedent (5)).

Another court decision affirmed default of a long-term care facility which caused fall of an elderly user while the facility should have taken a due care to prevent fall of elderly users when getting up from a bed (reference precedent (8)).

3. Pulmonary aspiration in the elderly

The elderly often experience pulmonary aspiration. There are some cases where the court affirmed liability of facilities as follows. In a case where a caregiver of an intensive care home for the elderly, while helping a resident to eat, neglected the duty to check the inside of the resident's mouth and the act of swallowing after the resident ate a konjac food and then made the person eat Hampen (fish minced and steamed) consecutively, after which the resident choked to death on food, the court affirmed employer liability of the care home (reference precedent (2)). In another case where an elderly user who was staying at an intensive care home for the elderly for a short period choked to death on bread, the court also affirmed liability of the care home (reference precedent (3)).

On the other hand, there is a judgment which denied default of a fee-based care home for the elderly in a case of death due to pulmonary aspiration during meal on the ground that the care home was not obligated to watch every move of the person from start to finish of each meal (reference precedent (7)).

4. Accidents in the elderly during hospitalization

Similar accidents in the elderly occurred during hospitalization, on which some precedents have been given. Concerning elderly patients, hospitals were determined to be obligated to consider safety of hospital patients as in the case of care homes for the elderly. For example, in a case where a patient ate a rice-ball assisted by a nurse and choked to death, the court affirmed hospital's liability in damages (reference precedent (4)). In a case where a patient fell down while moving from a wheelchair to a bed for dialysis because a hospital staff member discontinued helping the patient, then the patient became persistent disturbance of consciousness, the court affirmed liability of the hospital (reference precedent (9)). There is also a case of denying hospital's liability (reference precedent (6)).

Reference precedents

1. Judgment by the Fukuoka District Court on August 27, 2003
   (Page 133 of Hanrei Jiho No.1843)
2. Judgment by the Nagoya District Court on July 30, 2004
   (written verdict obtained)
3. Judgment by the Osaka District Court on November 29, 2006
   (Page 304 of Hanrei Times No.1237)
4. Judgment by the Fukuoka District Court on June 26, 2007
   (Page 306 of Hanrei Times No.1277)
5. Judgment by the Osaka District Court on November 7, 2007
   (Page 96 of Hanrei Jiho No.2025)
6. Judgment by the Osaka District Court on November 14, 2007
   (Page 256 of Hanrei Times No.1268)
7. Judgment by the Tokyo District Court on July 28, 2010
   (Page 99 of Hanrei Jiho No.2092)
8. Judgment by the Tokyo District Court on March 28, 2012
   (Page 40 of Hanrei Jiho No.2153)
9. Judgment by the Tokyo District Court on November 15, 2012
   (Page 264 of Hanrei Times No.1388)