Fall on a Defective Sidewalk at an Assisted Living Facility

Attorney Answer

Medicare may pay the bills up front, but it does not absorb them — if you recover anything from the facility, Medicare gets paid back out of that recovery. That is the part of your question with a clear answer, so start there.

Under the Medicare Secondary Payer provisions, 42 U.S.C. § 1395y(b)(2), Medicare may make conditional payments for accident-related care, but it is a secondary payer and will assert a recovery claim against any liability settlement, judgment, or award. Practically, that means the money is advanced, not forgiven, and the claim has to be resolved out of any settlement. Ignoring it creates a problem later, so it needs to be handled from the beginning rather than discovered at the end.

On the fall itself: a divot in a sidewalk is a fixed structural defect, not a spill. To hold the facility responsible you have to show it knew about the defect or that it had existed long enough that a reasonably careful owner should have found and fixed it. Evidence that the walkway had been reported before, or that the divot was old and weathered, is what carries that. Florida also reduces recovery by the injured person's own share of fault, and above 50% there is no recovery — so expect an argument that the defect was open and obvious.

If your mother is a resident, her claim may also be affected by an arbitration clause in her residency agreement. Yours, as a visitor, would not be.

What you can do

1. Photograph the divot now, with something in frame for scale, before it is repaired. Repairs happen fast after a fall is reported. 2. Report the fall in writing to facility management and ask for a copy of the incident report. 3. Get both of you medically evaluated and keep every bill and Explanation of Benefits. 4. Keep every notice Medicare sends, and tell any lawyer at the first meeting that Medicare paid — the conditional-payment claim under § 1395y(b)(2) is far easier to resolve at settlement than after. 5. Ask for the facility's maintenance and work-order records and any prior complaints about that walkway. 6. Read your mother's residency agreement for an arbitration clause before signing anything else.

⏱ Time limits apply. Under Fla. Stat. § 95.11(5)(a), an action founded on negligence must be brought within two years for causes of action accruing on or after March 24, 2023. The exact deadline depends on your fall date, and Medicare's repayment obligation attaches separately whenever a recovery is made.