With the Graying Comes a New Challenge for Civil Litigation: An Avalanche of Falls

Over the years, the lowly “slip and fall” case has gotten a bad reputation.  Perhaps it is well-deserved.

In popular culture, perhaps nothing eptiomizes the fraught role of a personal injury attorney more than the injury victim tripped up by a banana peel and headed to court.  But recent statistics from the Center for Disease Control point out what many of us already know:  slipping and falling is no laughing matter, and as the population ages, it looks like both the number and severity of these cases is only going to increase.

The recent statistics from CDC are startling.  Each year in the United States, one in every three people over the age of 65 will experience a fall.  Half of these individuals will have had a serious fall already.  Even more alarming is this:  more than 15,000 people over the age of 65 died as a result of a fall (up from 7,700 for the earlier reporting period).  And, the studies suggest that we are only seeing the tip of the iceberg:  incidents of falls go up with each decade of life.

In the face of such alarming statistics, we must ask why?  In reality, we rarely stop to think about what a miracle it is that we can even stand in the first place.  After all, fellow creatures in the animal kingdom have to walk on all fours just to get around.  The simple act of standing involves a complicated coordination of muscles, bones and ligaments just to keep us upright.  Once we add in ambulation, i.e. the simple act of moving forward foot over foot, and this amazing balancing act becomes even more miraculous.

This explains why age is such an important risk factor.  As we age, both the senses and motor control diminish.  Eyesight, hearing and balance all falter while muscles can atrophy while the joints fall prey to arthritis.

Of course, once a fall occurs (statistics show that the majority of falls are likely to occur right in one’s own home), the consequences are more dramatic amongst the aged.  The reasons for this are probably obvious, but bones become more brittle and our ability to heal becomes impaired.

I remember an eye-opening conversation with a personal injury client who happened to also be an orthopedic surgeon.  As we were waiting for the jury to return, the conversation turned from his own spinal injury to fractures, and I asked my client why hip fractures (the most common result of falls by far) are frequently fatal.  He told me approximately one-third of the blood flow is diverted to the fracture site as a part of the body’s natural effort to heal itself.  As beneficial as this diversion can be, the effect on other parts of the body can be devastating.  Patients with lung problems cannot breathe as well.  Infections fail to heal, and a host of other body systems simply cannot work without adequate blood flow.  The patient frequently succumbs to heart attack, pneumonia, blood clot or some other post-surgical complication.

From a personal injury law viewpoint, lawyers can expect more and more slip and fall cases.  Contrary to popular opinion, most will be carefully scrutinized by legal counsel.  And to be sure, many of these cases should be rejected  because of the simple fact that the occurrence of the fall does not mean that there will be a meritorious lawsuit.  For example, under Virginia law, a host of obstacles make these cases difficult to assert and in order to justify prosecuting a case, the injuries need to be sufficiently serious.

But the obstacles to proceeding should not be a deterrent.  It is almost impossible to know whether a claim can be brought without investigation by counsel.  The obvious cases should, of course, be avoided:  injury victims who trip over their own feet, people who get drunk and stumble, etc.  But for a large percentage of our aging population, a slip and fall incident may be a life changing event.  Then, it is certainly advisable to determine whether similar situations have occurred or if the accident was somehow preventable.  Under such circumstances, financial compensation may be recoverable and may be the only way to make the best out of what is surely a terrible situation.