Fire safety: is your facility legal? The legal structure governing nursing home fire safety: a guide to self-examination

Nursing Homes, Sept, 2004 by Julie A. Braun

Similarly, in Donson Nursing Facilities v. Dixon, for instance, the Georgia Court of Appeals held a nursing home liable for failing to supervise a mentally confused resident who, while smoking in bed, started a fire that killed him. (14) The facility knew of the resident's careless smoking habits and propensity to set fires while smoking and failed, despite this knowledge, to exercise any supervision of the decedent.

Visitor providing residents with smoking materials. Family members, visitors, other residents, or facility staff may provide smoking materials to residents. Consider LeBlanc v. Midland National Insurance Company, where the Louisiana Court of Appeal affirmed a verdict in favor of the nursing home after a resident was burned while smoking a pipe, reasoning that the facility at one time had removed all smoking materials, but the resident's family demanded that the resident be allowed to smoke. (15) In Black v. Trevilla Nursing Home of New Brighton, for example, the Minnesota Court of Appeals learned of an unattended, wheelchair-bound resident who allegedly died as a result of a burn sustained from "combustibles, smoking materials, matches, or other incendiaries" negligently allowed by the facility. (16)

Purposeful or accidental igniting of physical restraints. The deliberate, purposeful, or accidental igniting of physical restraints also may result in death or injury. (17,18) For example:

     A 76-year-old nursing home resident diagnosed with dementia died
   two days after suffering third degree burns over 56% of his body when
   his clothing caught fire. Allegedly, the resident was found standing
   and ablaze from the waist up after facility staff responded to
   screams. In a subsequent negligence lawsuit, the decedent's surviving
   heir claimed that the resident had been placed in a vest restraint
   without a physician's order in violation of federal and state
   regulatory rules and procedures. She also claimed that the facility
   administrator had instructed employees to restrain the resident when
   his family members left the premises after visiting. The plaintiff
   also alleged that the facility had an ineffective smoking policy
   despite knowledge that some residents had cigarettes and lighters.
   She theorized that the resident's roommate, who also suffered from
   dementia, either lit a cigarette for the decedent or tried to help
   him use a cigarette lighter to burn off the restraining vest's
   straps. The resident's room was cleaned and painted at night
   immediately after the fire. A fire investigator allegedly found a
   trash bag in a Dumpster containing the decedent's clothing and the
   remains of the vest. The administrator denied the allegations. A
   Texas Department of Human Services investigation prompted the
   establishment of an involuntary trusteeship to operate the facility
   and return it to compliance with federal and state regulations. A
   $1,350,000 settlement ended the negligence suit. (19)

Conclusion