A nursing home staff member, in a fit of anger or frustration, strikes a resident, causing injuries. If this happens to you or a relative, you might think about suing the staff member and the nursing home. The lawsuit could hardly be more open and shut, right? Think again.
Nursing home lawsuits often are far more complex and difficult than might first appear. For example, because the act of striking the resident was intentional, the nursing home's insurer might deny insurance coverage for the incident. In some cases, a lawsuit involving questions about proper care can mean a costly and difficult fight over medical or nursing home malpractice.
We begin with the basics, describing the most common kinds of nursing home assaults and explaining how the law treats these cases. From there, we'll turn our attention to claims and lawsuits over nursing home assaults and the factual and legal issues that are likely to arise.
Our concern is with cases involving a physical assault or attack by one person—a nursing home staff member, another resident, or a third party like a contractor or family member—against a nursing home resident. These assaults take many forms, including:
In 2012, the National Center on Elder Abuse reported that in nursing homes, staff-on-resident assaults (29% of all abuse), resident-on-resident assaults (22% of all abuse) and sexual assaults (7% of all abuse) accounted for more than half of all reported abuse cases.
Solid data are hard to come by, in part because nursing home abuse is underreported. But this much is clear: Nursing home residents experience alarming rates of abuse. In one survey of family members of nursing home residents, nearly one-quarter of respondents (24.3%) reported that a relative had been physically abused by nursing home staff at least once.
Residents themselves report even higher rates of abuse. And in one review of several international studies (including studies done in the United States), roughly two-thirds of staff members admitted to having abused residents.
Most personal injury cases involve a legal concept called negligence. In the simplest terms, negligence is just carelessness—failure to be as careful as you should under the circumstances.
A quick example will illustrate. You're driving on snow and ice covered roads when you lose control of your car and cause an accident. You didn't mean to get in a wreck. You just weren't as careful driving on the slick road conditions as you should have been.
Nursing home assaults, by contrast, involve intentional misconduct—what the law calls an "intentional tort." A person who commits an intentional tort can be forced—through a lawsuit—to pay compensation (what the law calls "damages") to anyone who's injured.
More specifically, a nursing home attack can be an assault or a battery, or it can be both. What's the difference? An assault is an intentional act that causes another person to fear immediate harmful or offensive contact. A battery is the intentional, harmful or offensive contact itself.
For the sake of convenience, we'll refer to both assaults and batteries as an "assault."
Example 1: One nursing home resident draws their fist back to punch another resident in the nose—an assault. When the punch lands, it's a battery.
Example 2: A nurse's aid yanks a resident out of bed by their arm and dislocates their shoulder. That harmful contact is a battery.
Example 3: A sexual assault can be both an assault (approaching the resident, if they're aware of the imminent and unwanted sexual contact) and a battery (the sexual contact itself).
Depending on state law, punitive damages also might be available. Punitive damages don't compensate an injured person for their losses. Instead, they punish a wrongdoer for extreme or outrageous misconduct. They're rarely awarded in personal injury cases.
Yes, you can file a lawsuit for a nursing home assault. But a lawsuit should be your last resort. You'll start by bringing an insurance claim against the responsible parties. Only if you can't settle your claims out of court should you sue.
If you have to file a lawsuit, here are the parties you're most likely to sue.
You'll need to sue the person who assaulted you—the assailant. In many cases, the assailant will have no insurance coverage or other assets you can look to for compensation. Depending on the facts and your state law, you might need to sue them anyway. A lawyer in your state who specializes in nursing home abuse cases can explain why.
The assailant is probably one of these people.
A nursing home staff member. By "staff member," we mean someone who's employed by the nursing home, like a nurse, a nursing assistant, kitchen or cleaning staff, and the like. They might be insured under the nursing home's liability insurance—either malpractice liability (in the case of professional staff like nurses) or a general liability policy (for non-professional staff). But in most cases not involving potential malpractice claims, the insurer will deny coverage. We'll explain why later.
An independent contractor. An independent contractor is someone who does work at the nursing home but isn't an employee of the nursing home. Examples include doctors (who typically are employed by their own medical practice), workers who come to repair the nursing home's facilities or equipment, or others who supply goods or services to the nursing home.
The nursing home's liability insurance almost certainly won't cover these contractors. If they have insurance coverage, it will be through their own or their employer's malpractice liability or general liability insurance. Here too, in most instances that don't involve malpractice, these insurers will deny coverage.
Another resident. As mentioned above, resident-on-resident assaults are common. Because almost half of all nursing home residents suffer from Alzheimer's disease or similar dementias, these conditions often are factors that contribute to the assault. The resident probably has no insurance or assets you can pursue for recovery, but your lawyer will investigate.
Third parties. This category includes all those who aren't included in the first three categories. Most often, a third party who assaults a resident will be a family member or another visitor.
As with independent contractors, the nursing home's liability insurance won't provide coverage. If there's insurance, it might be through a business liability policy (for a visitor who's there in a business capacity) or a homeowner's liability policy. Expect a coverage denial.
You'll also sue the nursing home and, if the assailant wasn't employed by the nursing home, the assailant's employer. Your claims against them will fall into one or more of these categories.
Respondeat superior. Respondeat superior is a Latin phrase meaning "let the superior answer." Under this theory, when an employee who's acting within the scope of their job duties and doing the employer's work injures someone else, their employer can be held liable for damages.
Importantly, respondeat superior doesn't hold the employer responsible because of anything the employer did wrong. Instead, responsibility is based on two things:
In the language of the law, the employer is vicariously liable for its employee's wrongful acts.
Because liability is vicarious, and because the insurance company is likely to deny coverage for the employee, it will also probably deny coverage for any claim against the employer based on respondeat superior.
Negligence. The nursing home and, if different, the assailant's employer are legally responsible for injuries and damages caused by their own negligence. As to the nursing home, this negligence likely falls into two categories.
First, the nursing home might be found responsible for negligently failing to protect or safeguard the resident from a non-employee assailant. Second, if the nursing home was the assailant's employer, it could be responsible for negligent hiring or negligent supervision of the attacker.
If the assailant wasn't employed by the nursing home, their employer also might be liable on a theory of negligent hiring or negligent supervision.
Professional negligence. Also known as malpractice, this theory might apply in a case involving, for example, inappropriate use of physical or medical restraints ordered or applied by a medical professional like a doctor or a nurse. Or perhaps a resident's inappropriate medical or nursing care is known to cause the resident to behave aggressively or to assault others. In cases like these, the nursing home might have a duty to intervene or take corrective action.
Nursing home assault cases can be among the most factually and legally challenging of all personal injury claims. We've touched on some of the reasons why, but let's take a more detailed look.
As a rule, liability insurance policies only cover unintentional acts and resulting injuries. Stated differently, intentional acts are—in nearly all liability insurance policies—categorically excluded from coverage. In most cases, an assault is intentional. For this reason alone, you can expect difficult insurance coverage problems in nursing home assault cases.
Depending on the facts of the case and the law, you might be able to argue that the assault isn't within the intentional acts exclusion. For example, as mentioned above, there will be cases where the resident's injuries result not from an assault, but from medical malpractice.
Resident-on-resident cases are another example. Sometimes, assaultive behaviors result from the resident's severe cognitive impairment, not from a purposeful desire to assault another resident or to cause harm. This is especially so when the resident's neurological deficits are poorly controlled, either because they're in an advanced state or because the resident is receiving substandard care.
Note that these insurance coverage problems arise only in regard to claims against the assailant and vicarious liability claims against the assailant's employer. As to other claims involving negligence or malpractice, coverage is likely available.
As should be apparent, nursing home assault claims can be difficult, time-consuming, and expensive regardless of the legal theories involved. But the problems and case expenses will increase exponentially when medical or nursing malpractice claims are involved.
Why? Because malpractice claims almost certainly require that you hire expert witnesses to review the case, write reports, and testify on your behalf. These witnesses are expensive. For each expert who must testify before and during a trial, you should expect a bill of between $10,000 and $15,000. To make matters worse, you'll often need more than one expert.
The value of any personal injury case is driven by a number of factors. One of those factors is the prospect of collecting future damages for things like medical expenses, pain and suffering, and emotional distress.
Future damages, as you might guess, depend on life expectancy. The value of future damages is much higher for a 35-year-old with a normal life expectancy than for a 75-year-old with severe cognitive impairment and a host of chronic medical conditions. This limited damage potential—particularly in cases involving medical malpractice claims—might mean that pursuing a lawsuit simply doesn't make financial sense.
This isn't a decision you want to make on your own. Speak to a lawyer about the value of your case and whether it makes sense to pursue a claim for damages.
If you take only one thing from this article, it should be this: Nursing home assault cases aren't the kind you should try to handle on your own. Factual and legal issues are almost certain to develop and unless you know your way around those issues, you're simply in over your head.
Nursing home lawyers and their insurance companies will throw up roadblock after roadblock, confident in the knowledge that you'll eventually get frustrated and give up. To make it a fair fight, one of your first calls after a nursing home assault should be to an experienced nursing home abuse lawyer.
When you're ready to move forward, here's how to find a lawyer in your area who's right for your case.