Hello, this is attorney Oh Seung-hyun of Cheongchul Law Firm.

When entrusting a parent to a nursing hospital (요양병원) or nursing home (요양원), families hold onto one belief: "the professional staff will care for them 24 hours a day." Then one day a call comes: "your mother fell out of bed, and it seems some bones may be broken." The fall happened days earlier, but the guardian is only being told now. A bedsore worsened to stage 4 over several months, yet the family was told, "her skin was in poor condition to begin with." A care facility's duty of protection exists in law. And where that duty is not fulfilled, courts have been recognizing liability for damages.

Three care-facility accidents — falls, bedsores, aspiration

(1) Falls — the most frequent, with the most serious consequences

Elderly residents frequently fall while trying to get up from bed alone, or slip while moving to the bathroom, because of reduced muscle strength, dementia, and cognitive decline. The problem with a fall is not the accident itself but what follows. In the elderly, a femur fracture or spinal fracture is hard to fully recover from even with surgery, and it not infrequently leads to pneumonia or sepsis and ultimately death. In fact, the Incheon District Court recognized a nursing home's negligence and ordered damages in a case where a resident suffered a femur fracture from a bed fall and then died of pneumonia (Incheon District Court, Case No. 2022Gadan220044, July 21, 2023).

(2) Bedsores — negligence in leaving a "preventable wound" unattended

Once a bedsore develops, it progresses rapidly. At stage 4, the bone is exposed—a severe condition. A nursing hospital's basic duties are to reposition the patient every two hours, record the condition daily, and immediately report any abnormal signs to a physician. In a case where a hospitalized patient with hypoxic brain damage developed a stage-4 bedsore, the Korea Consumer Agency pointed to the nursing hospital's neglect of prevention and management. The very fact that a bedsore developed becomes strong evidence that the duty of care was not fulfilled.

(3) Aspiration pneumonia and choking — the duty to supervise during meals

Elderly residents, especially those with reduced swallowing function, are at high risk of aspiration, where food passes into the airway during meals. Care facilities have duties such as checking the eating posture, keeping the resident seated upright for at least 30 minutes after meals, and immediately calling medical staff when aspiration is suspected. Where these are neglected and lead to aspiration pneumonia or choking, negligence may be recognized.

The standards by which courts recognize care-facility negligence

(1) The fall-prevention duty — a higher standard of care is required for high-risk residents

When a court assesses fall negligence, the key is the resident's condition and the facility's response. For residents at high risk of falling—those with dementia, Parkinson's disease, or cognitive decline—installing bed safety devices, reinforcing night rounds, and keeping care workers on constant standby are required. The Seoul Central District Court recognized the negligence of a nursing hospital that seated a dementia and Parkinson's patient alone in a wheelchair without any safety measures (judgment of January 26, 2021). In the Incheon District Court case (2022Gadan220044) as well, the court saw "the care worker leaving the post (離席) plus the absence of safety devices" as the crux of the negligence.

(2) Post-incident response after a fall is also an independent duty

The response after a fall occurs is a separate duty. In the Seoul Central District Court case No. 2014Gahap29822, the nursing home applied only a cold compress on the ground that there was no external injury, and failed to properly check the resident's condition the next day. The court recognized this failure of post-incident response as an independent act of negligence and ordered 40% liability (Seoul Central District Court, Case No. 2014Gahap29822, August 11, 2015). Where a resident is suspected of injury to the femur, spine, or skull, immediate imaging examination and a decision on transfer to an outside hospital are required.

(3) Nursing hospitals and nursing homes — the level of duty differs

A nursing hospital (요양병원) is a medical institution to which the Medical Service Act (의료법) applies. Physicians and nurses are resident and perform medical acts. A nursing home (요양원), by contrast, is a welfare facility to which the Long-Term Care Insurance for the Elderly Act (노인장기요양보험법) applies, and no physician is resident. Courts hold that "a nursing home does not bear the same level of duty of care as a medical institution, but it does bear a duty of appropriate care and conservative measures" (Suwon District Court, Case No. 2023Gahap11646, July 19, 2024). For a nursing home, the legal theory must be framed as a "breach of the duty of protection" rather than medical negligence.

(4) The relaxed-causation doctrine — the Supreme Court's new 2023 rule

In August 2023, the Supreme Court set out a new rule relaxing the standard for proving causation in medical malpractice litigation (Supreme Court, Case No. 2022Da219427, August 31, 2023). The core is this: if the patient side proves the existence of negligence in treatment and that the negligence had a likelihood of causing the harm, causation between the negligence and the harm is presumed. Previously the patient side had to prove causation directly, but once this rule applies, the medical institution must rebut it by showing the harm was "due to another cause." This rule can also apply to nursing-hospital accidents.

When liability is denied — cases the care facility won

(1) Where the resident had an independent capacity to act

In the Suwon District Court case No. 2023Gahap11646, the resident could handle most daily activities alone and could use the emergency call button. The court held that a nursing home cannot be said to bear even a duty of close supervision over a resident in such a condition, and confirmed the non-existence of the nursing home's damages obligation (July 19, 2024). Where the resident's level of independence in daily living is high and they were classified as low-risk in a pre-incident fall-risk assessment, facility liability may be denied.

(2) Where the post-incident response was medically reasonable

Even where a fall occurred, if the care worker immediately checked the condition and the judgment that transfer was unnecessary for the time being—because there was no external injury—was medically reasonable, negligence in the post-incident response may not be recognized. Also, if a medical assessment finds that the resident's underlying disease (severe dementia, lung disease, terminal cancer) was the principal cause of death, causation is denied. The frequent appearance of liability-limitation ratios (30–40%) is also because of this underlying-disease factor.

The key evidence to secure in a care-facility accident

(1) The fall log and the nursing record

A nursing hospital has a duty to prepare a fall report when a fall occurs. This report records the time of the incident, witnesses, the time the condition was checked, and the measures taken. Immediately after the incident, you must request a copy of this record in writing. The nursing record contains the repositioning cycle, observations of the bedsore condition, and the time of reporting to a physician. If this record and the actual bedsore condition do not match, it becomes strong evidence of negligence.

(2) CCTV footage — 72 hours after the incident is the deadline

Care facilities usually have CCTV installed in corridors and common areas. If a fall occurred, you must request preservation of the CCTV footage in writing within 72 hours. If the facility refuses or the footage has been deleted, that itself becomes circumstantial evidence of concealment. Courts weigh such a refusal to preserve evidence against the facility. Because an oral request leaves no record, you must request preservation in writing (or by text message).

(3) Records and photographs of the bedsore's onset and stage

If there is a bedsore, you must secure, in the medical records, the time of first discovery, records of stage changes, and the dressing frequency. Whether the progression from stage 1 to stage 4 was reported to the attending physician and disclosed to the family is a key issue. If there are no records of the bedsore's onset time and stage, you must preserve the entire original medical record through an application for evidence preservation to the court. Photographs of the bedsore taken directly during a visit are also important evidence.

Practical checkpoints

• If a fall, bedsore, or aspiration accident occurred at a care facility, check whether you recorded the time and content of the first contact from the facility. The gap between when the accident occurred and when the guardian was notified becomes evidence of a delayed response.

• If, after a fall, the resident suffered a serious fracture of the femur, spine, or skull, check from the medical records whether a CT or X-ray was taken immediately, or whether the resident was merely observed and then transferred days later. A transfer delay becomes a key basis for arguments on negligence and causation.

• Check whether a fall report was prepared and, if so, whether its content matches the actual situation. If the fall report and the CCTV footage do not match, it becomes circumstantial evidence of evidence tampering.

• If there is a bedsore, check from the medical records the bedsore stage, the time of first onset, the date reported to the attending physician, and the date the family was notified. If the family was not informed during the period the stage-4 bedsore progressed, you can separately assert a breach of the duty to provide information.

• Check whether you requested preservation of the CCTV footage in writing within 72 hours of the incident. An oral request leaves no record, and it is hard to hold the facility legally liable even if it deletes the footage.

• Check whether the resident was classified as high-risk for falls (dementia, Parkinson's disease, cognitive decline) and whether the facility established a fall-prevention plan accordingly. If there is no fall-risk assessment record at all, that itself is evidence of neglect of the prevention duty.

• Discuss with a lawyer whether to first choose mediation by the Korea Medical Dispute Mediation and Arbitration Agency or civil litigation. For care-facility accidents, litigation may be advantageous in cases of death or severe aftereffects, and mediation in cases of minor injury.

You trusted that "I left them with a professional facility, so it will be fine," and then you receive a call a few days later. Those few days are the evidence of negligence. A care facility is a place that has contracted to be responsible for a resident's safety 24 hours a day, and where it fails to perform that contract, legal liability clearly exists.

Our firm works with you through the entire process—from securing the fall log, CCTV, and medical records immediately after a care-facility accident, to analyzing bedsore stages, applying for mediation with the Korea Medical Dispute Mediation and Arbitration Agency, and pursuing a damages lawsuit.