Can I Sue a Nursing Home for Assault on a Resident?

Can I Sue for a Nursing Home Assault?

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.

The Person Who Assaulted You

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.

The Nursing Home and Other Employers

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:

• the employee's liability, and
• the employer-employee relationship.

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.