Citation Nr: 1308750	
Decision Date: 03/14/13    Archive Date: 03/25/13

DOCKET NO.  04-25 376	)	DATE
	)
	SUPPLEMENTAL DECISION	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi



THE ISSUE

Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1151, due to hospital care received at a Department of Veterans Affairs medical facility.  

REPRESENTATION

Appellant represented by:  Samuel M. Tumey, attorney


ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel

INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran had active military service from July 1941 to November 1946 and from July 1953 to January 1968.  The Veteran died in August 2000.  The appellant is the Veteran's surviving spouse. 

This matter came to the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  

While the appellant was previously represented by a private attorney, she is currently unrepresented.  

By way of history, the appellant's claim was previously denied by the Board in October 2005, August 2008, and June 2009.  In each case, the appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In each instance the Court vacated and remanded the appellant's appeal back to the Board for further appellate review.  Subsequently, the Board entered a decision dated in June 2011 again denying the appellant's appeal.  The appellant appealed the Board's decision to the Court.  Counsel for VA's Secretary requested that the Court vacate the Board's June 2011 decision and remand the appeal to the Board for readjudication.  In a February 2013 order, the Court remanded the appellant's appeal to the Board for the limited purpose of allowing the Board to make a determination as to whether the failure of VA medical personnel to use bed rails or side rails during the Veteran's hospitalization rose to the level of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care.  

FINDINGS OF FACT

1.  VA medical personnel at the Biloxi/Gulfport VA Medical Center (VAMC) failed to use standard technological interventions for fall prevention (i.e., bed rails/side rails, bed alarms, or fall mats) following the Veteran's first documented fall at the facility in June 2000.  

2.  VA failed to exercise the degree of care that would be expected of a reasonable health care provider.  


CONCLUSION OF LAW

VA was careless, negligent, and/or demonstrated a lack of proper skill in its furnishing of hospital care to the Veteran.  38 C.F.R. § 3.361(d)(1) (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As noted in the Introduction, above, the Court has requested that the Board determine whether the failure of VA medical personnel to use bed rails or side rails during the Veteran's hospitalization at the Biloxi/Gulfport VAMC rose to the level of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care.  

The Veteran was an inpatient of the dementia ward of the nursing home care unit at the Biloxi/Gulfport (Mississippi) VAMC.  At the time of his admission to the facility, the Biloxi/Gulfport VAMC was aware that the Veteran was a "high fall risk."  Later, a preventive treatment plan was put into effect following the Veteran's falls on three previous occasions.  Three days after the treatment plan was implemented, the Veteran fell a fourth time.  
The Board notes that in 1999, the National Center for Patient Safety (NCPS) was created by VA to develop a culture of safety throughout the Veterans Health Administration or VHA.  See www.patientsafety.gov/CogAids/FallPrevention.  The NCPS developed a Fall Prevention Management (FPM) aid to help VA clinicians assess a patient's risk for falling and to recommend interventions.  

Of relevance in the present case, the FPM aid notes that after a patient first falls, consideration should be given to technology to prevent repeated falls.  The technology includes bed and/or chair alarms, nurse call and/or communication systems, low beds for patients at risk for falls, as well as video camera surveillance.  At the same time, the FPM aid notes that fall prevention programs emphasize bedrail reduction.  It is noted that bedrails contribute to patient fall risk by creating barriers to patient transfer in and out of beds.  The FPM aid does not, however, completely advise against the use of bedrails, but notes that the use of bedrails must be assessed specific to individual patient needs.  

Otherwise, associated with the record on appeal is an opinion of a geriatric and extended care manager for the VA South Central Health Care Network.  The manager commented, following his discussion of the Veteran's hospitalization at the Biloxi/Gulfport VAMC with an RO employee, that appropriate measures could have been taken to prevent the Veteran's falls, such as installing a bed monitor on the Veteran's bed, ensuring that both bed rails were in the up position at night or, in an extreme case, a sitter could have been assigned to monitor the Veteran.  

Here, the Board finds that in light of the facts of this case and the NCPS Fall Prevention Management aid, that VA medical personnel at the Biloxi/Gulfport VAMC failed to use standard technological interventions for fall prevention (i.e., bed rails/side rails, bed alarms, or fall mats) following the Veteran's first documented fall in June 2000.  As such, and in light of subsequent falls by the Veteran before a fall treatment plan was implemented by the facility, VA failed to exercise the degree of care that would be expected of a reasonable health care provider.  


ORDER

VA was careless, negligent, and/or demonstrated a lack of proper skill when it failed to implement standard technological interventions for fall prevention following the Veteran's first documented fall at a VA medical facility in June 2000.  



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs