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When Nursing Home Residents Smoke: Injuries and Liability

A nursing home in California is facing an injury lawsuit after one of its patient, a man who is 55 and suffers mental impairment, suffered severe burns after he was allegedly given a cigarette and a lighter – and discovered a short time later engulfed in flames. Prior to the incident, the man was partially paralyzed and was only mobile with the use of a wheelchair. nursing home neglect lawyer

The nursing home injury lawsuit filed on his behalf, according to The San Luis Obispo Tribune, alleges abuse, neglect, negligence and violations of the patient’s rights resulting in injury. His father asserts he should have never been given his own lighter nor left alone unsupervised in a designated smoking area. The nursing home has yet to file its response in court, though a statement released to media shortly after the incident indicated the facility worked hard to balance the safety of residents with their desire to be independent and continue lifelong habits.

But the issue, plaintiff says, is not that the facility allowed his son to smoke. The issue was that the staff had a duty of care to provide plaintiff with appropriate supervision and protection. Specifically in this instance, plaintiff says, his son should have been provided with a fire-retardant gown. He should not have been left with a lighter in his possession. There should have been staffers there to supervise him. Plaintiff’s injury lawyer says that while a fair amount of nursing home negligence cases involve some allegation of medical malpractice, this issue was one of “basic common sense” and ordinary negligence. (It’s an important distinction in terms of notice and expert witness requirements). 

The patient in this case had been living in assisted care after he was struck by a vehicle while riding a bicycle, leaving him permanently paralyzed and mentally impaired. At the time, he had been a long-time cigarette smoker. The facility allowed him one cigarette hourly in a designated smoking facility, though he was, per his plan of care, not permitted to have his own lighter; a staffer was to light it for him. That protocol was allegedly not followed in this instance, and patient suffered third-degree burns on his back and left side. He underwent three skin graft surgeries, and still suffers terrible pain, his father says. Further, the burns have left him even more greatly dependent on full-time care, diminishing his quality of life.

This is not a totally isolated incident. Just a few years ago, a Virginia nursing home patient suffered severe burns in 2011 after staffers allegedly left him unattended outside the center while he smoked. The family later sued for $1.45 million.

In a fairly recent publication in the industry magazine Assisted Living Review, nursing home liability for smoking-related injuries was explored. It was concluded that balancing safety with resident’s rights involves having a clear smoking-related policy – and then ensuring those policies are followed. Policies can include provisions like:

  • Designating an outdoor smoke area (outside their rooms);
  • Keeping a fire extinguisher in immediate reach if there is an emergency;
  • Routinely performing evaluations of all residents who request to smoke (and ensuring these assessments are thorough);
  • Storing cigarettes and lighters in a secure location, limited to staff-only, outside of patients’ rooms;
  • Always providing staff supervision of smokers.
  • Having a call system to immediately summon help.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.

Additional Resources:

SLO nursing home patient ‘engulfed in flames’ after he was left to smoke, lawsuit says, April 25, 2018, By Matt Fountain, San Luis Obispo Tribune

More Blog Entries:

Failure to Perform CPR on Nursing Home Resident is Neglect, April 22, 2018, Nursing Home Neglect Attorney Blog

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