In the Courts: Court Excludes Evidence of Steps Taken after Resident Fall

​After an adverse event, aging services providers may make changes in policies and procedures to prevent recurrence. Plaintiff’s attorneys may seek to discover and introduce such “subsequent remedial measures” into evidence at trial in an attempt to prove that the facility was negligent—in other words, had the policy been in place, the adverse event would have been less likely to occur. Consider the following case, involving a fall that resulted in a resident’s death. The Maine Supreme Judicial Court affirmed judgment in favor of the nursing home, concluding that a lower court correctly excluded the remedial measures from evidence at trial.

At the time of the fall, the resident’s care plan indicated that she needed “one assist” when going to and from the toilet. The resident typically left her bed many times each night to use the bathroom, often without asking for help. Early one morning, a certified nursing aide (CNA) responded to the resident’s bed-exit alarm, finding the resident on the toilet. The CNA asked the resident to stay where she was until the CNA could get a pair of gloves. The resident nodded, and the CNA left the bathroom to get gloves from a dispenser about five or six feet from the bathroom’s entrance. While the CNA was getting the gloves, the resident fell, hitting her face on a garbage can and suffering a serious laceration. She was hospitalized and died from...