Who's Liable for Nursing Home Injury or Abuse?

"Who's legally responsible when a nursing home resident is injured by abuse or neglect?"

If that question—or something like it—brought you here, you're in the right place. Sadly, abuse and neglect are facts of life for many nursing home residents. Medical, nursing, and other patient care staff, family members, and third parties like contractors, suppliers, and delivery people are among the most frequent abusers. But the chain of legal responsibility doesn't end there.

We explain who you can look to for compensation ("damages," in the language of the law) when you or a relative is injured or a relative is killed by nursing home mistreatment.

It Starts With the Abuser

Nursing home abuse and neglect always starts with an abuser—a person who physically, sexually, or psychologically abuses (or neglects) a nursing home resident, or who financially exploits a resident who no longer can manage their own affairs. Your list of potentially responsible parties should start here.

People Who Might Abuse or Neglect Residents

The search for responsible parties starts with this list of potential culprits.

Medical, nursing, and patient care staff. Nursing home staff are frequent abusers. Those who have the most daily patient contact—usually undertrained and overworked nursing assistants and patient care aides—are more likely to mistreat residents. But professional staff like doctors, nurses, and therapists all too frequently cross the line from caregiver to abuser.

Family members. Close interpersonal relationships and financial dependence can be a recipe for family-on-resident abuse. In many cases, these abusive relationships predate the resident's arrival at the facility. Nursing home staff might prefer to look the other way, seeing abusive interactions as a "family matter" rather than reportable abuse.

Third parties. Lots of third parties work in nursing facilities. Cleaning, food service, and security company employees, among others, sometimes have nearly unrestricted access to patients and their rooms. Regrettably, nursing home staff typically are stretched too thin to properly monitor and supervise the comings and goings of these workers.

Is Abuse and Neglect Intentional Wrongdoing or Negligent Misbehavior?

Typically, the law considers abuse to be an "intentional tort." That's legalese for a deliberate or intentional act that causes harm to someone else. In the context of nursing home abuse, common abusive behaviors—hitting, slapping, grabbing and pulling, burning, and the like—are intentional torts called "assault and battery."

Negligence, on the other hand, is basically carelessness, meaning a failure to act as carefully as is required by the circumstances. Proving an intentional tort means coming up with evidence to show the actor's state of mind. Negligence doesn't depend on the actor's state of mind. The question is whether a reasonable person in a similar situation would have acted more carefully. Note, importantly, that nursing home "neglect" isn't necessarily the same thing as negligence.

The distinction between intentional torts and negligence can matter for many reasons, but one of the most important is for insurance purposes. Liability policies usually exclude coverage for intentional or deliberate acts. Stated a bit differently, negligent acts typically are covered, but intentional misbehavior usually isn't.

The Nursing Home

The nursing home will, of course, be a prime target. It can be held liable for:

• abuse or neglect by a nursing home employee, and
• its own wrongdoing.

Abuse or Neglect by Nursing Home Employees

As a rule, the law doesn't hold one party legally responsible for the misdeeds of another. But there's an exception to that rule when a party has a special relationship with the wrongdoer. Employers have just such a special relationship with their employees.

When an employee who's acting within the scope of their duties and doing the employer's work causes injury, the employer can be held vicariously liable for the employee's bad acts. The legal theory is called "respondeat superior," meaning "let the superior answer." If this theory applies, the rule is pretty simple: When the employee is liable, the employer probably is, too.

In the context of nursing home abuse, it's a stretch to argue that intentional or deliberate abuse of a resident is doing the employer's work. Vicarious liability is more likely when a nursing home staff member's negligence causes injury. Ask your lawyer if vicarious liability might be possible in your case.

The Nursing Home's Own Wrongdoing

In addition to vicarious liability for its employees' abusive behavior, a nursing home can be held legally responsible when its own misconduct—whether intentional or negligent—causes a resident to suffer injuries.

In most cases, the question will be whether the nursing home was negligent. These are some of the negligent acts or omissions to look for:

• inadequate or improper training of staff
• negligent hiring of staff and contractors—for example, failing to perform adequate background checks
• failure to properly monitor and supervise staff, contractors, and other third parties
• failure to provide adequate security
• failure to provide for the daily necessities of living, such as food and water
• medical neglect, like failing to address medical needs or provide medications
• failure to protect residents from health and safety hazards, and
• unreasonable, excessive, or dangerous use of physical or chemical restraints.

If the nursing home's negligence played a role in a resident's injury or abuse, the nursing home can be held liable for some or all of the resulting damages.

(Learn more about damages in a personal injury or wrongful death case.)

Ordinary Negligence vs. Medical Malpractice

Claims that a health care professional—like a doctor, nurse, therapist, or pharmacist—or other health care provider (including a nursing home) negligently provided or failed to provide health care to a resident are probably medical malpractice claims, not ordinary negligence claims. The line between malpractice and simple negligence often isn't clear, but don't be surprised if the parties you're suing (called "defendants") raise it as an issue.

Why does it matter? Because in almost every state, special laws protect health care providers from malpractice liability. For instance, you might have to follow more complicated procedures, and chances are you'll need one or more expert witnesses to prove your case. In many states, even if you win your lawsuit, your damage recovery will be limited.

Ask your attorney whether this is, or is likely to be, an issue in your nursing home case.

Other Third-Party Responsibility

We've touched on the possible liability of third-party employees for specific acts of abuse or neglect. There might be other third-party responsibility as well, including:

• liability for third-party employers, and
• liability for other negligent acts or omissions that cause harm to a resident.

Liability for Third-Party Employers

We talked above about how vicarious liability might play a role when nursing home staff harm a resident. Keep in mind, though, that vicarious liability apply in any employer-employee relationship.

Suppose, for example, that a security guard negligently spends most of the evening sitting at the nursing home's front desk instead of regularly inspecting the facility. As a result, a resident's family member is able to sexually assault the resident. Under these circumstances, the security guard's employer might be found vicariously liable for the guard's wrongdoing.

As is true for the nursing home, a third-party employer can be held liable for its own negligence. Continuing with our example, the security agency also might be found liable for negligent hiring of the security guard, or for negligently failing to properly train or supervise the guard.

Long story short: When a third-party employee is liable, look for ways to hold their employer responsible as well.

Liability for Other Negligent Acts or Omissions

There can be circumstances where a third party's negligence combines with the wrongful acts or omissions of another—say, a nursing home staff member—to cause a resident harm. In such a case, the third party will be on the hook for their share of the blame.

Here's a simple example. A nurse's aide strapped a resident to a gurney as a form of punishment. When the resident struggled to get free of the straps, the gurney's metal frame failed, causing the gurney to collapse. The resident fell to the ground and suffered a severe head injury.

In addition to the liability of the nurse's aide and the nursing home, the gurney's manufacturer might be found liable for negligently:

• failing to warn against using the gurney as a restraint device
• failing to instruct users in how to safely use the gurney as a restraint device
• designing a defective and dangerous gurney, and
• manufacturing a defective and dangerous gurney.

Again, be on the lookout when a third-party's negligence causes or contributes to cause injury to a resident.

If You Suspect Nursing Home Abuse or Neglect

If you've been abused or neglected in a nursing home, or if you suspect that a relative or another resident is being mistreated, it's important to get the right help. When life or safety is in imminent jeopardy, your first call should be to 911. Police and other first responders can step in to make sure that you and others are safe.

From there, you should contact your state's Adult Protective Services (APS) office. APS authority varies from state to state. In some states, APS can investigate nursing home abuse. In others, nursing home misconduct is left to licensing or regulatory authorities.

Report the abuse to APS even if you're not sure. They'll look into it and if APS isn't authorized to act, they'll forward your report to appropriate state and local authorities. You can contact APS by telephone, via your state's APS website or mobile app, or in writing. Here's a list of state APS and similar agencies you can reach out to for assistance.

You'll also find your state's Long-Term Care Ombudsman to be an excellent resource. Among other duties, ombudsmen work as advocates for nursing home residents and their families. The U.S. Administration on Aging has a variety of eldercare resources available and can help get you pointed in the right direction.

Get Legal Help With Your Nursing Home Abuse Case

An experienced lawyer can help you identify the appropriate agency to contact, and also knows who can help get an endangered resident out of the facility and to safety. In addition, a lawyer can take the lead in investigating known or suspected abuse to find out who's responsible.

When you're ready to move forward with your case, here's how to find the right lawyer for you.