Is a fall in a nursing home always negligence?

No. Some falls happen despite good care. The questions are whether the facility assessed the resident’s fall risk, put the planned safeguards in place, such as supervision, assistance with transfers, alarms or toileting schedules, and followed them on the day of the fall. Following a care plan does not settle the question if the plan itself was inadequate for the resident. Federal rules for nursing homes in Medicare or Medicaid require the facility to keep the environment as free of accident hazards as possible and to give each resident adequate supervision and assistance devices (42 CFR 483.25(d)).

Does the nursing home have to tell the family about an accident?

Under federal rules for nursing homes in Medicare or Medicaid, when an accident injures a resident and may need a physician’s attention, the facility must immediately inform the resident, consult the resident’s physician and notify the resident’s representative (42 CFR 483.10(g)(14)). Write down when you were told, by whom and what was said.

How do we get the incident report and records?

Ask in writing. At a nursing home in Medicare or Medicaid, federal rules give the resident, or a legally authorized representative, access to the resident’s own records within 24 hours, excluding weekends and holidays, and copies after two working days’ notice, for a reasonable cost-based fee (42 CFR 483.10(g)(2)). That right belongs to the resident and an authorized representative, not to every family member. Internal incident investigations and quality-assurance reviews may be privileged and are not automatically part of that access. If records are slow to arrive, we follow up in writing and, if a case is filed, through discovery.

Is a nursing home accident case medical malpractice?

It depends on what went wrong. New York courts treat a claim as malpractice when the conduct is medical treatment or bears a substantial relationship to treatment by a licensed physician, and as ordinary negligence otherwise (Weiner v Lenox Hill Hospital). A staff member dropping a resident during a transfer may be negligence; a decision about which fall precautions a resident medically needed may be argued as malpractice. A Public Health Law 2801-d rights claim can be added in either case.

How long do we have to bring a claim?

It depends on the claim. Ordinary negligence and Public Health Law 2801-d claims are generally three years (CPLR 214); malpractice is generally two years and six months (CPLR 214-a); wrongful death is generally two years from death (EPTL 5-4.1). A facility run by a county or other public entity can require a notice of claim within 90 days. Because the classification can be disputed, plan around the shortest clock that might apply.

Does filing a complaint with the Department of Health protect our deadline?

No. A complaint to the New York State Department of Health can lead to an inspection, but it is not a lawsuit and does not stop or extend any deadline for a claim. You can do both: report the concern and talk to a lawyer about the legal deadlines.

Falls, transfers and other nursing home incidents

Nursing Home Accident Lawyers

If a resident is hurt, get medical care first; call 911 in an emergency. Then focus on the record: a nursing home must work to prevent accidents, tell the family when one causes injury, and let you see the resident's records.

We represent families across New York City and Long Island. Free review, no fee unless there is a recovery.

(516) 227-2662

A staff member walks beside an older woman using a walker in a bright corridor, both seen from behind.

Incident evidence

What happened, and what should exist on paper

An accident case turns on whether the facility knew the risk, whether its plan was adequate for the resident, and whether staff followed it. These are the records we look for first, by type of incident.

The incident	What shows the risk was known	What shows what happened
A fall from bed, a chair or while walking	Fall-risk assessment, care plan safeguards (supervision, alarms, toileting schedule, walker or wheelchair use), staffing on that shift.	Incident report, post-fall assessment, neurological checks after a head strike, family notification time.
A transfer or mechanical-lift injury	Transfer status in the care plan (one or two staff, lift required), lift and sling inspection or maintenance records, staff training.	Who performed the transfer, how many staff, and whether a lift was used as planned.
A wheelchair, bed or equipment accident	Equipment assigned to the resident, maintenance and repair logs, bed and side-rail assessments.	Photos of the equipment and the room; the work order after the event.
Wandering or leaving the building	Elopement or wander-risk assessment, door-alarm and monitoring records, supervision plan.	Time the resident was last seen and found; search and notification log.
A burn, scald, choking or aspiration event	Water-temperature checks, diet and texture orders, swallowing evaluations, meal-supervision plan.	Meal and bath records for that day; who was present.
An injury caused by another resident	Behavior care plans, prior incident reports involving either resident, room assignment and supervision decisions.	Incident report; whether the facility reported the event to the State agency (42 CFR 483.12).

A fall from bed, a chair or while walking: Fall-risk assessment, care plan safeguards (supervision, alarms, toileting schedule, walker or wheelchair use), staffing on that shift.; What shows what happened: Incident report, post-fall assessment, neurological checks after a head strike, family notification time.
A transfer or mechanical-lift injury: Transfer status in the care plan (one or two staff, lift required), lift and sling inspection or maintenance records, staff training.; What shows what happened: Who performed the transfer, how many staff, and whether a lift was used as planned.
A wheelchair, bed or equipment accident: Equipment assigned to the resident, maintenance and repair logs, bed and side-rail assessments.; What shows what happened: Photos of the equipment and the room; the work order after the event.
Wandering or leaving the building: Elopement or wander-risk assessment, door-alarm and monitoring records, supervision plan.; What shows what happened: Time the resident was last seen and found; search and notification log.
A burn, scald, choking or aspiration event: Water-temperature checks, diet and texture orders, swallowing evaluations, meal-supervision plan.; What shows what happened: Meal and bath records for that day; who was present.
An injury caused by another resident: Behavior care plans, prior incident reports involving either resident, room assignment and supervision decisions.; What shows what happened: Incident report; whether the facility reported the event to the State agency (42 CFR 483.12).

Worried about ongoing neglect, abuse or pressure injuries rather than one incident? See our nursing home neglect, abuse and neglect and bed sore pages.

The mast, spreader bar and chains of a mechanical patient lift standing against a wall.

Federal rules for nursing homes

Rules the facility must follow

These federal rules apply to nursing facilities that take part in Medicare or Medicaid, not to every assisted-living or senior residence. Meeting them is a floor, not proof that care was adequate.

Preventing accidents. The environment must stay as free of accident hazards as possible, and each resident must get adequate supervision and assistance devices (42 CFR 483.25(d)).
Telling the family. After an accident with injury that may need a physician, the facility must inform the resident, consult the physician and notify the representative (42 CFR 483.10(g)(14)).
Reporting. Alleged abuse or neglect, including injuries of unknown source, must be reported to the administrator and the State survey agency within hours (42 CFR 483.12(c)).
Records. The resident or a legally authorized representative can see the resident's records within 24 hours, excluding weekends and holidays, and get copies on two working days' notice (42 CFR 483.10(g)(2)). Internal incident and quality-assurance reviews may be privileged.

Claim type and deadline

Negligence, malpractice or a rights claim

How a claim is classified changes the deadline. New York courts treat a claim as malpractice when the conduct is medical treatment or bears a substantial relationship to treatment by a licensed physician, and as ordinary negligence otherwise (Weiner v Lenox Hill Hospital). Many fall and transfer cases could be argued either way, so the safe course is to plan around the shortest clock that might apply.

Ordinary negligence (for example, an unsafe transfer or an unanswered fall risk): Generally three years from the injury (CPLR 214).
Resident-rights claim under Public Health Law 2801-d: A liability created by statute, generally three years (CPLR 214). It adds to other claims rather than replacing them (PHL 2801-d).
Medical malpractice (a challenge to medical treatment decisions): Generally two years and six months (CPLR 214-a), with the narrow exceptions explained on our medical malpractice page.
The resident died: Wrongful death generally within two years of death (EPTL 5-4.1).
A facility run by a county or other public entity (injury claim): A notice of claim is generally due within 90 days (GML 50-e). For a personal-injury claim against the Nassau Health Care Corporation, which runs the A. Holly Patterson Extended Care Facility, suit is due within one year and 90 days of the event (PAL 3415). A death claim against a public entity follows different notice and filing rules.

Resident rights. Public Health Law 2801-d makes a residential health care facility liable for injuries a patient suffers as a result of being deprived of a right or benefit created by law, contract or regulation. The facility is not liable if it proves it exercised all care reasonably necessary to prevent and limit the deprivation and injury. Compensatory damages are at least 25 percent of the daily per-patient rate of payment established for the facility (or, without an established rate, its average daily total charges per patient) for each day the injury exists, and punitive damages are possible for willful or reckless deprivations (PHL 2801-d).

A complaint is not a lawsuit. The Department of Health investigates nursing home complaints, but a complaint does not stop or extend any deadline.

After an incident

Steps for families

Decisions about treatment and placement are for the resident, the family and the medical team. These steps are about protecting the record.

1. Medical care first. Make sure the injury is evaluated, and note where the resident was taken.
2. Ask in writing for the care plan and the records for the days around the event, and ask what the facility found. Keep a copy of your request.
3. Write it down: when you were told, by whom, and what they said happened.
4. Photograph visible injuries, the room and any equipment involved, if you can do so without disrupting care.
5. Talk to a lawyer about which deadline applies before the shortest one passes.

Where we help

New York City and Long Island families

Our main office is in Uniondale and serves Nassau and Suffolk families; see our Uniondale office. City families are served from our New York offices. When a fall involved a doctor's treatment decisions, our Nassau County medical malpractice and medical malpractice pages explain those claims.

Questions

Nursing home accident questions

Talk to a nursing home accident lawyer

Tell us what happened, when the family was told, and what the facility has said since. We will tell you which records to request, which claim types may apply and which deadline is closest. The review is free.