Written by attorney Kenneth Lee LaBore

Nursing Homes, Assisted Living and Other Elder Care Facilities Have a Duty to Prevent Burn Injuries

Nursing Homes Have a Duty to Prevent Burn and Oxygen Explosion Injuries & Fire Loss

One of the most horrific types of injuries I have seen in my career as a nursinghome neglect and abuse attorney is that of oxygen fire burns with elderly residents who continue to smoke.

As a general rule most nursing home residents have the rights to continue to smoke even if against the doctor’s orders or counter to nursing home recommendations. I have seen several cases where someone who was on oxygen was smoking and a fire with resulted with serious injuries and/or death of the resident. This type of accident is preventable through proper supervision and care from the nursing home staff. Most nursing home staff are the aware of the residents that smoke and they should be given particular close supervision when they are also using oxygen. The need for supervision increases even further if the resident has a history of poor judgment or is unable due to cognitive changes such as Alzheimer’s and Dementia to perceive risks and dangers.

Of course there should be not oxygen tank on the wheelchair or attached to the resident when they smoke. Many facilities have a safety protocol where the lighter and cigarettes are held for high risk smokers and they must sign them out and have someone check to see they are not attached or adjacent to any oxygen tanks or other fire hazards when they do smoke. Not all fires are from oxygen, many are from mattress, drapery and other fires.

To participate in the Medicare and Medicaid programs, nursing homes must be in compliance with the federal requirements for long term care facilities as prescribed in the U.S. Code of Federal Regulations (42 CFR Part 483).

Under the regulations, the nursing home must have sufficient nursing staff. (42 CFR § 483.30)

A nursing home must conduct an initial comprehensive and accurate assessment of each resident's functional capacity. (42 CFR § 483.20). The facility must further develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment.(42 CFR § 483.20 (k)) and Minnesota Rule 4658.0405, Subp. 1. As this pertains to burn injuries and fire hazards, each resident’s risk to hazards including, smoking, fire, oxygen, etc. must be assessed and a comprehensive care plan made to protect the resident from that risk.

Federal Law requires that a nursing home take measures to reduce all risks for accidents including, fire risks from smoking, etc.

Accidents. The facility must ensure that—

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.(42 CFR § 483.25 (h)).

Burn injuries can range from less severe “first degree burns", to the most severe burns characterized as “third degree burns". First degree burns which are characterized by the blistering and redness of the top layer of the dermis also known as dermis. Second degree burns involve the dermis plus the next layer of skin, the epidermis, are involved. There are usually visible blisters and burnt skin. Third degree burns involve all the layers of the dermis being burned away and may also include burning of the subdermal layer of fat.

Attorney Kenneth LaBore also handles residential, commercial and apartment fire claims and disputes with insurance companies regarding the value of lost real estate and other property.

If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to: [email protected], or call Ken at 612-743-9048 or Toll Free at 1-888-452-6589.

Additional resources provided by the author

Free Q&A with lawyers in your area

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer