ADA, OSHA and Code Violations 5

[magistrao]

Hi, I am a teacher. I am also new to this world. My mother had a slip and fall accident in a doctor's office. She fell descending the two or three risers. When she fell, she attempted to grap on to a handrail. The oral surgeon's office had no handrails. This was inside the building. The business had two code violations - no handrails and the risers were not of equal size. The insurance company is stating that they cannot assume liability in this case. They do not need to comply with ADA requirements. When the building was remodeled in 1983, it was under the city's 1979 code which mandated handrails and riser requirements. How could a doctor's office not comply with ADA requirements? I have looked in ANSI 117.1 505; BOCA, the Life Safety Code and they all state that handrails are an important part of any risers. How could a doctor's office not be mandated to maintain the safety features as well as the ADA ACT of 1990? We do not understand this info from the insurance company. Does anyone out there know anything about this? Is this something that OSHA would regulate? The business has fixed the problem since the city made them after they were cited. Medicare has rescinded all payments to the hospitals and rehab centers. My mom's medical bills were over 80,000 because when she fell she broke her hip and fractured vertebrae in the back. We supposedly owe the rehab center 24,000 in less than a month's time because the insurance company won't assume liability. This has been a nightmare. Does anyone out there have any idea regarding federal, state and local code violations? What source holds the key? Are there state mandated codes about this? We live in California. Are there federal mandates about this? Thanks so much for helping me find out any and all of this info. Maryann

 

[kenvlach]

1) OSHA doesn't apply, unless your mother worked there. ADA may not apply except to new construction/remodelling, but I don't know positively.
2) Were the risers/stairs actually in the doctor's office, or just in the building? Probably, the landlord is responsible, not the Dr.
3) Since they were cited and made repairs, my unprofessional opinion is that you have a good case. You only need one broken building code law, city or otherwise.
4) You need a good personal injury lawyer. Ask around, visit one for a free consultation, and he/she will tell you whether you have a case. If so, the lawyer will take the case on a contingency basis.

 

[jheidt2543]

In many cases, the first response of the insurance company is to deny the claim, especially one as large as yours. You need a good personal injury attorney to chase the insurance company for you, a really big S.O.B. You arn't out to win friends, you just want your legitimate bills paid. It is usual practice that the attorney will take a case like yours on a "contingency" basis. He only gets paid if he wins, but he takes 25-33% of the award. Good luck.

 

[Ron]

A Doctor's office is considered a "public accommodation" and as such must comply with the ADA. The condition you described could be considered a "barrier to accessibility" and as such was required by Federal law to be corrected by January 26, 1992.

Further, the Life Safety Code NFPA 101 would apply as well (or at least it is referenced by most model building codes). Not only the riser height issue and handrail issue need to be checked, but the coefficient of friction for the surface of the steps should be checked.

As much as personal injury attorneys make me cringe, you might be well served to consult one as jheidt indicated.

OSHA doesn't apply.

 

[Lutfi]

I agree with Ron. He is on target.

Lutfi

 

[JAE]

Ron - I was just ready to agree with everyone here until I read your statement "...must comply with the ADA".

As I understand it, the ADA is aimed at accommodating disabilities (thus the D in ADA) and stands there as a law requiring new construction to accommodate those with disabilities and remodeled construction to do the same. This would be the lever-type door knobs, wheelchair access, ramps, etc. For this case, the guy's mother really wasn't disabled, but subjected to a simple code violation. ADA, the way I understand it, was meant to be a lever by which those disabled could compel building owners to offer handicapped-friendly details in their facilities (the lever being Mr. Lawyer).

With uneven stair risers and no handrail, don't you think they've simply got a case of a negligent hazard proven by the fact that it doesn't meet the city's code?

I know ADA is a litigation nightmare so my ideal world of ADA described above may be a bit simple....just seems that its more of a code issue than ADA.

 

[magistrao]

Okay, thanks so much to everyone for the advice. The original contractors stated that the area that my mother was requested to go up was never intended to be used for the public. Supposedly there was another room on ground level which was purported to be for paying bills and making appointments. My mother was asked to ascend the steps. There was no other area inside the building where she could make arrangements for appointments and pay the bill. The insurance company, of course, says it is partially her fault for ascending the steps. She should not have attempted to ascend the steps. I questioned them by asking them why their agent chose to insure a building that did not comply with code. They retorted with how did he know that there were code violations? The city passed inspection on the building remodel originally. I just do not understand how the city could send someone out and pass inspection on something that deviated so severely from the code standards of the time. The owners of the building are the doctors who practice out of the building. I do not understand how the insurance company can deny premise liability. I do not know why a doctor's office would not have to comply with ADA standards. I thank you for all of your responses. WE will seek legal counsel but my mom is 87 and should not have to deal with the stress of depositions, perhaps a court trial, etc. The insurance company should do the right thing and pay the bills and help out with in home care. They are chosing to wait her out as well as the hospitals. I have sent them the codes as they relate to this area. With your help perhaps we can help them see the light. Thanks again.

Magistrao

 

[dik]

Who asked your mother to ascend the stairs? With parking lots, it's my understanding of case law is that if you park anywhere, then it's at your peril, but if an attendant instructs you to park somewhere, its his problem. It's also unreasonable for your mom to know if the stairs are safe. She was following instructions from a person familiar and with knowledge of the building. Doctors should have knowledge of safety issues, also.

What are the code (town, city or state) requirements for stairways? is it considered a necessary 'exit'? What drawings were presented to the building officials? Was the work undertaken in accordance with these? Is there an architect/engineer involved?

After the initial refusal by the insurance company, I'd be talking to a lawyer, post haste... falls can be very serious for the elderly. Also the speed is indicative of the seriousness of the incident. Impress upon the lawyer the urgency of resolving this.

There are other damages, beyond the immediate medical ones: stress, punative, loss of enjoyment, long term, etc. Your lawyer may use this as a 'carrot and stick' approach.

 

[Ron]

WOW JAE! That's the first time I've seen that question raised! Do the modifications required by the ADA apply only to disabled people? Excellent question. A defense attorney would love you for that one!

The answer is almost "Yes" and "No", but not quite. Digging into it you'll find the answer to be "No". The first provision of the ADA was to "remove barriers to access". In so doing, peril to others could not be created. If the barriers remained (in violation of the ADA), it would likely be deemed "no harm, no foul" to a non-disabled person, since it wasn't intended to affect them anyway.

The ADA was not and is not a building code. It is a civil rights law. It did; however, bring about changes and inclusions in building codes as a result of the needed modifications. Further, the definition of disabilities is very broad under the ADA, and including certain temporary conditions. With this in mind, an astute attorney could probably make a reasonable case for inclusion.

I agree with you that their stronger argument is one of direct building code compliance, though probably enhanced by the ADA.

Keep in mind that the ADA first required barrier removal. This has been the most violated of the ADA concepts. It was required by Federal law to have been completed in 1992. There are still many existing facilities that do not comply (take a trip to almost any fast-food restaurant built before 1992 and you'll see numerous violations that shouldn't remain. Further, we think of disabilities as including the obvious (wheelchair access is the most obvious), but the ADA encompasses physical impairment of many sorts, including limited physical movement (bad back), hearing and sight impairments, certain diseases, and even some mental impairment.

 

[magistrao]

Well, thanks to all of you, I have ventured into the unknown again. I wrote the (ADA) Department of Justice and posed the same questions. I found some very interesting pieces of info in the ADA law. I quote from it:

1. Small businesses have limited protection from lawsuits. Except with respect to new construction and alterations, no lawsuit can be filed concerning acts or omissions that occur before --
1) July 26, 1992, by businesses with 25 or fewer employees and gross receipts of $1,000,000 or less.

2) January 26, 1993, by businesses with 10 or fewer employees and gross receipts of $500,000 or less.

It seems as though the doctor's office is off the ADA hook via this direct quote. I did write to the Department of Justice to see what the implications of the actual law are. I am hoping that this conversation opens discussion within the community so that safety factors continue to play a major consideration in planning/designing buildings.

I am ignorant of so much but am actually learning a great deal. We fear the dreaded word ATTORNEY, but know that it may become an issue that we have to face. Too bad that an 87-year-old may have to go through the stress of a deposition just because some insurance company refuses to be honorable in its commitment and obligation. The only positive to all of this negative is that Medicare and the Rehab Hospital have placed a lien on the Insurance Company to pay up or else. Obviously they have reviewed the facts and consider the company liable.

I will post the information from the ADA as soon as I receive a response. In the meantime I have become very familiar with the ANSI, BOCA and the Life Safety Code.

Maryann

 

[magistrao]

Regarding stairway requirements and risers....I wrote to all of you in the spring of 2003 with the story of my mom falling in an oral surgeon's office after she had been asked to ascend two steps in the office. When she came down from the risers, slipped, fell, and broke her hip. It was a nightmare especially when Medicare started rescinding payments of medical bills because they considered it premise liability. The building was cited with two code violations....no handrails for the stairs and the risers were out of compliance. There was also a lighting issue. Amazingly this building had passed inspection by the city when it was remodeled. TWO BUILDING INSPECTORS PASSED THE BUILDING in 1985. To make a huge story shorter, the insurance company denied the claim over and over again even with code violations. We sought legal counsel but the attorney knew the oral surgeon so I ventured into the legal arena on my own. WIth all of your help and support (and I really mean that) we settled with the insurance company in September. This was after extensive research and reporting the company to the state insurance commission. The insurance company had to pay at least $100,000 in medical bills, paid for our remodel of the bathroom to make it handicapped accessible ( a huge task with a walk in shower) and soon we will be building a ramp for the wheelchair. In addition over the next 7 years or so they are having to pay a monthly amount for her in home care. Without all of your advice, I would have been in big trouble paying the medical bills and certainly could not have afforded the in home health care that she needs now. Is her hip any better? No, she will probably never walk again more than a few steps with her walker. The hip has been a nightmare but it would have been more of a nightmare if we would have been stuck with all of the bills. I am really grateful to all of you for your advise. We did not have to deal with an attorney, she did not have to be abused by the court system and depositions and the bills were paid. Thanks, thanks, and thanks. I feel as though I have become the mini expert on riser requirements and handrail standards. And yes, I even spoke with a leading expert on stairway safety to ask for his advice.

Again, it was a story of David and Goliath and this time David won with all of your support and help.

Gratefully yours,

Maryann AKA magistrao

 

[dik]

The incapacity likely comes shy of the settlement... but, I'm happy that there was a more positive resolution. All the best to you and your family in the New Year and the coming years.

 

[AlohaBob]

You need a Lawyer.