Legal Responsibility in Nursing Home Abuse Claims

by | May 7, 2021 | Nursing Home Abuse And Neglect

A combination of an aging population and chronic understaffing is largely responsible for the abuse which takes place in Kentucky nursing homes. About a third of patients report seeing at least one act of physical abuse. Researchers believe this number is vastly understated. Many residents do not report abuse, mostly because they fear retaliation or don’t want the abuser to get into trouble.

The individual abusive staff member is morally and legally responsible for such an incident. But the nursing home or other entity which employed the staffer is typically financially responsible for damages. Out-of-state holding companies own most Kentucky nursing homes. Therefore, these claims are usually quite complex.

Because of this complexity, only a highly experienced Lexington personal injury attorney should handle such claims. That’s the best way, and often the only way, to ensure fair compensation. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Neglect vs. Abuse

Many people think these words are synonymous, especially in the nursing home injury context, mostly because these two things have a lot in common. However, there are some important differences, from a moral perspective and a legal perspective.

Neglect is an unintentional injury. Bedsores are a good example of a negligence injury. Residents develop pressure ulcers if they do not turn over in bed at least once every two or three hours. Some residents are so weak or overmedicated that they cannot do this. If staffers don’t turn them over, the staffers are negligent.

The respondeat superior theory usually applies in these matters. Employers are financially responsible for their employees’ negligence.

Abuse is an intentional injury. Abuse is not necessarily malicious. But it’s always purposeful. Some examples include:

  • Physical Abuse: Most residents are so physically frail that a tiny bit of force, such as pushing a resident onto a bed, can cause a serious injury. Understaffing often causes physical abuse. Overworked staffers sometimes take out their frustrations on residents.
  • Emotional Abuse: That old “sticks and stones” line is pretty much entirely false. Words, like “no one loves you,” hurt every bit as much, or maybe even more, than physical acts.
  • Sexual Abuse: This abuse can be direct or indirect. Many unscrupulous people sexually abuse residents because these people are so vulnerable. Indirect sexual abuse often means forcing a resident to watch pronography or witness a sex act.
  • Financial Abuse: This final form of abuse is more common outside nursing homes, although it also happens in long-term care facilities. People take advantage of their positions of trust. Or, they simply take money or valuables from residents.

Respondeat superior usually only applies to injuries which take place within the scope of employment. The aforementioned abuse incidents are clearly beyond the scope of employment. Therefore, attorneys must use alternative legal theories to establish nursing home financial liability. Fortunately, some theories are available.

Negligent Hiring

Essentially, negligent hiring is hiring a person whom the employer knows, or should know, is incompetent. This activity is common in several contexts.

Some nursing homes hire underqualified individuals. For example, a patient care technician might do a licensed vocational nurse’s job. These issues often create negligent injuries, such as the aforementioned bedsores. PCTs might not recognize early stage pressure ulcers. Underqualified workers are also more likely to give into the intense pressure of working in a nursing home.

Other nursing homes hire workers without asking too many questions. If Nursing Home A fires Paul because he allegedly abused a resident, it’s fairly easy for Paul to get a job at Nursing Home B if the hiring manager doesn’t pin down Nursing Home A about what happened.

Criminal records are in a category of their own. Normally, a criminal record in and of itself does not trigger the negligent hiring doctrine. Instead, the injury must be related to the criminal record. So, if Nursing Home C hires a registered sex offender who steals money from a resident, the nursing home might not be liable for that abusive injury.

Negligent Supervision

Basically, negligent supervision is the failure to properly manage any employee or the failure to properly discipline a wayward employee.

SUpervision during nights and weekends is often an issue at many long-term care facilities. The highest authority present is probably a charge nurse or a shift manager. In the workplace pecking order, these individuals usually don’t inspire workers to be on their best behavior. We talked about one old saying above. In this context, an appropriate aphorism might be “When the cat’s away, the mice will play.”

Proper discipline includes a thorough investigation and a proportionate response. A letdown in either area could constitute negligent supervision. Frequently, if a nursing home resident complains about abuse, management ignores the problem, only conducts a cursory investigation, like getting the worker’s side of the story, or doesn’t mete out the proper discipline.

Nursing homes are financially responsible for most abuse injuries. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. You have a limited amount of time to act. #goodelawyers