Abuse of Woman at Nursing Home not Investigated; $7.75 Million Jury Verdict
Abuse of Woman at Nursing Home not Investigated; $7.75 Million Jury Verdict
Radha V. Bachman, Esq.
Buchanan, Ingersoll & Rooney, P.C.
News: An elderly woman was allegedly abused by employees at a nursing home. The woman's family repeatedly complained to management, who failed to investigate the issue. After more than a year of unaddressed complaints, the family installed a hidden camera in the room. Footage from the camera reveals multiple instances of staff abuse. A jury verdict was awarded in favor of the plaintiff in the amount of $7.75 million.
Background: In 2006, a 71-year-old woman, who, because of suffering a stroke, was unable to speak or walk, began receiving care at a nursing home. Upon visiting the elderly woman, the family noticed bruises on her face, arms, and legs. The family promptly reported these injuries to the management of the nursing home. In addition, the family of another resident residing across the hall similarly complained of alleged abuse by the staff. These complaints were not addressed by the nursing home's management for more than one year.
Frustrated by management's failure to investigate the suspected abuse, the woman's family installed a hidden camera in the room in an attempt to document the abuse. Upon reviewing the footage, the family watched as an employee of the nursing home slapped the woman in the face, pulled her by the hair, roughly handled her neck and hands, and treated her violently while in a shower seat. Management immediately terminated the employee upon viewing the footage.
With her husband of 45 years acting as the woman's guardian ad litem, the woman and her family brought suit against the employee, the nursing home, and the nursing home's owner for elder abuse, negligence, and violation of the woman's rights.
At trial, the plaintiffs showed that multiple families complained to the management about instances of suspected abuse. One of these submitted complaints specifically named the terminated employee. The terminated employee stated that, despite more than a year of notice, she was never interviewed or monitored with respect to the suspected patient abuse. The employee pled no contest to one count of simple battery for abuse on that specific day, and at the civil trial only admitted guilt pertaining to the one day of abuse.
The nursing home and its owner acknowledged that the employee's actions were reprehensible, but claimed that they were outside the scope of her employment. The nursing home further claimed that it had no reason to justifiably suspect the employee of abusing the residents.
The jury awarded the plaintiff $7.75 million, including $3 million in punitive damages against the nursing home's owner and $2 million in punitive damages against the nursing home.
What This Means To You: It is the moral and ethical responsibility of all of society to prevent abuse, neglect, and exploitation of vulnerable children, the mentally ill or impaired, and the elderly. In most, if not all states, there are laws protecting those who fall into these categories. There are also federal laws that require immediate reporting of suspected abuse, neglect, and exploitation, usually through a state agency. Frontline health care professionals such as doctors, nurses, and home health care providers are referred to as mandated reporters.
The elderly are particularly vulnerable to bruising as a component of the aging process. All large or unusual bruising is not a result of abuse, if it can be explained. Many patients, residents, and clients are taking medications that make them susceptible to easy bruising. As we age, our skin becomes thinner and more vulnerable to a cut from a bump on a surface. Again, with an immediate investigation, many of these events can be explained away. In these instances the investigation results need to be documented in the medical record and the family or surrogate made aware of the condition and investigation results. Communication is imperative.
When suspected or actual abuse is recognized, it is required to be reported to the appropriate state and federal agency immediately and an internal investigation begun. Reports to the federal agency are required, as well. Some states require that the name and number of the abuse hotline be posted prominently throughout the facility. Depending on the state, the federal reports are made through the respective state. Usually within 24 hours of the report, a state investigator will interview the patient, resident, or client. If the investigation shows probable cause, law enforcement will be notified.
In the event of suspected or witnessed abuse, the involved employee or staff member should be immediately suspended until the investigation is complete. Human resources policies and procedures should be followed regarding whether the suspension is with or without pay. However, when the investigation by the authorities is complete, if the abuse is found to be unfounded, the employee should be returned to duty with back pay. Medical staff, vendors, and contracted workers are treated in the same way as an employee in the event of suspected or observed abuse.
Risk managers should be thoroughly familiar with their state and the federal laws regarding the reporting of abuse, neglect, and exploitation of children, the mentally ill and impaired, and the elderly. Systems should be set up to notify risk management immediately of any allegations, reports, suspicions or witnessed abuse, physical or psychological. Risk management should be the point person to coordinate with the state investigators and law enforcement, as well as the internal investigation.
Departmental and human resource (HR) policies and procedures should be developed and implemented regarding identification of and handling of reports or observed abuse and immediate state and federal reporting. Risk management should facilitate, with HR and management, the education of all new hires and annual updates to all employees on these policies and a zero tolerance philosophy of the organization. Regardless of whether a state law or regulation requires the state abuse reporting hotline be posted, risk management should advocate such a posting throughout the facility.
The legal doctrine Respondeat Superior comes into play in the situation of an employee involved in abuse of a patient, resident, or client. Simply stated, in these situations, the employer is responsible for the acts of the employee.
In almost all, if not all states, nursing home administrators are required to be licensed. A case such as this might be a trigger for an investigation into the actions of the facility administrator for not making the necessary reports of suspected abuse. It would behoove the risk management team to meet with the administrator to discuss the state and federal statutes, reporting requirements, and to reiterate the internal reporting system to make risk management aware of such family reports immediately.
In this sad case, the resident's family admitted their loved one into the care, control, and custody of this particular nursing home to care for her after a stroke that left her unable to speak or walk. The family's expectations were, as any family would assume, that their loved one would be cared for and protected in the facility. For whatever reason, the nursing assistant assigned to care for this patient abused her, on more than one occasion, reportedly. At no time did the facility undertake an investigation or make the required report to state or federal authorities. Even the corroborating reports made by the family of a resident across the hall from the resident failed to initiate an investigation or a report.
It is unknown if this facility had a risk manager, or if the risk manager was ever made aware of these multiple reports by the family of both of these residents of alleged abuse to administration. Risk managers, working with senior and middle management, particularly nursing management, should emphasize that suspicions, allegations/reports, or observed abuse should be immediately reported to risk management. As is clearly recognized by this case, abuse is a significant risk exposure to a facility and should be handled as any other potentially compensable event (PCE.) From a potential claim view, failure to initiate an immediate investigation, and to comply with state and federal reporting requirements just makes a bad situation worse.
And of course, one cannot forget the potential of such a case triggering an inspection by the state licensing agency or accrediting body as a result of this kind of outcome.
1. Superior Court, Ventura County, California, No. 56-2007-288161.An elderly woman was allegedly abused by employees at a nursing home. The woman's family repeatedly complained to management, who failed to investigate the issue. After more than a year of unaddressed complaints, the family installed a hidden camera in the room. Footage from the camera reveals multiple instances of staff abuse. A jury verdict was awarded in favor of the plaintiff in the amount of $7.75 million.
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