If you are reading this post you are probably wondering, how could an assault occur in a nursing home and who committed the assault? Was it a caregiver? Another patient? Keep reading. We will answer your questions and explain the rights of nursing home residents who are victims of sexual assaults.
When we help a loved one move into a nursing home, we assume they will be safe. Ninety-nine percent of the elder abuse cases we see involve poor care. Every now and then we see cases where residents are physically or sexually assaulted by other residents. Now and then we see assaults committed by staff or other caregivers. And very rarely, an assault by a stranger.
A nursing home in Southern California, owned by Balboa Healthcare, allowed a dangerous parolee to enter the facility and rape an 88 year old resident. The parolee, Lusean Arline, was arrested eight day after the attack based on DNA evidence. The victim is recovering but suffered extensive injuries including a broken arm.
These allegations are the basis of a lawsuit seeking $50 million from the owner of the facility. In this post we examine the rights of nursing home residents to be free from the trauma and threat of sexual assaults.
Sexual assaults in skilled nursing facilities are thankfully rare but happen more than people think. The three scenarios are patient on patient assaults, sexual assaults by caregivers and assaults by third parties (often strangers). We will examine each separately.
Patient on Patient Sexual Assaults
Nursing homes owe a special duty to patients. In many instances, the residents of these facilities are vulnerable. Often elderly and disabled, most are unable to defend themselves. Some can’t even communicate while many have cognitive disabilities. All of these folks become easy prey for others.
To insure the safety of residents, nursing homes have a duty to screen new patients and monitor patients who may pose a risk to others. For example, a schizophrenic patient with a history of violence should not be placed in a room with another patient or left unmonitored.
The legal theory is called negligence. A facility is negligent when it fails to take reasonable steps to prevent a “foreseeable” event. Putting a dangerous, 250 lb., middle age patient with psychological disorders in a room with a 105 lb. disabled 88 year old patient is a recipe for disaster. If the jury believes that the nursing home knew or should have known of the danger posed by the patient, the facility can be held responsible for the injuries caused by that patient.
The nursing home’s defense would likely be the assault was not foreseeable or that it took “reasonable” measures to prevent the assault. In nursing home sexual assault cases, it is very important to have a good lawyer.
The deep pocket iin sexual assault cases is not the other patient. The only recovery is usually from the nursing home or their insurance. Convincing the jury that they should hold the nursing home responsible requires an experienced lawyer.
The takeaway is that nursing homes can be held responsible for monetary damages when a patient sexually assaults another patient.
Sexual Assaults by Caregivers
As noted earlier, nursing homes have the duty to provide a safe environment for patients. This duty extends to ensuring that staff are properly screened, trained and supervised. The duty to screen and train is especially important when dealing with vulnerable populations such as school children and nursing home residents.
Simply because a resident is assaulted doesn’t mean the facility is responsible. But the nursing home can be held accountable if they failed to properly vet new hires or ignored warning signs.
Poor Hiring / Screening
The process of protecting patients begins with the hiring process. Nursing home workers have close proximity to patients and often have direct physical contact.
Best practices require nursing homes to fully vet new hires. That means a criminal background investigation, verify education and prior work history and check with both references and prior employers.
Employers should be especially concerned with any gaps in employment. For example, in an Arkansas case, a patient filed a lawsuit claiming she was sexually assaulted while being bathed by a healthcare worker. The facility claimed that it wasn’t responsible for the worker’s actions and that it had properly conducted a background check.
Subsequent investigation revealed that the worker had been fired by a hospital after being accused of sexual harassment of a patient. The employee failed to list his employment at the hospital which had fired him leaving a gap in his employment history. Although the new employer checked all references, they didn’t inquire about the 2 year gap in the applicant’s work history.
Poor Training of Healthcare Workers
Obviously every healthcare worker knows that sexual assault and abuse is illegal. Typically, new hires get an hour or two training on sexual harassment when hired and that’s it.
Proper training helps instill an expectation of zero tolerance of sexual misconduct in the workplace. We aren’t saying that crude jokes automatically lead to rape but maintaining a professional workplace begins with good training. And good training includes on-going in service training on sexual misconduct and non-hostile patient environments.
Proper training should also include ensuring that sensitive contacts with patients such as bathing and catheter replacement have two workers present.
In our experience, sexual assaults are far less likely to occur in nursing homes where employees take patient complaints seriously and where employees understand they have a duty to report any questionable or unprofessional actions by co-workers.
The duty to report is especially report in nursing home situations. Many healthcare workers don’t take residents’ reports seriously. They chalk reports of sexual abuse up to unhappy residents, mental illness or the medications which the resident may be taking. In many states, healthcare workers are considered mandatory reporters and must report to authorities but instead choose to report internally.
Failure to Supervise Healthcare Workers
The duty owed to nursing home residents doesn’t stop once a worker is hired and trained. Facilities have an ongoing responsibility to supervise and monitor employees.
That duty includes ensuring that co-workers understand their duty to report suspicious behavior, thoroughly investigating all patient complaints, alerting authorities when a suspected assault occurs or is reported and enforcing policies designed to prevent assaults. An example of the latter is a policy that requires two employees be present when bathing residents.
Two months ago a hospital worker at the University of Pittsburgh Medical Center was charged with a multitude of sex related offenses including one count of aggravated indecent assault, one count of indecent assault related to the fondling a patient, 19 counts of sexual abuse of children, manufacturing of child pornography, 171 counts of invasion of privacy, and 201 counts of interception, disclosure or use of wire, electronic or oral communication.
Lest you think this was a single patient that was victimized repeatedly by the same man, that wasn’t the case. Prosecutors say the charges relate to 206 different patients some of whom were children. We don’t believe the nurse’s reign of terror would have lasted so long and involved so many patients if proper supervision and best practices were in place.
According to Pennsylvania Attorney General Josh Shapiro, “People who were rushed to the emergency room or needed serious medical attention were violated by this man. This sick sexual predator took advantage of patients when they were at their most vulnerable, in need of care.”
Sexual Assaults by Strangers
Our post comes back in a full circle. We started by discussing the recent arrest of Lusean Arline, the former Balboa Healthcare worker in Southern Carolina accused of raping an 88 year old woman in a nursing home. Nursing homes may be liable for these assaults as well, although the legal liability theories are different.
Depending on the state, facility owners can be held responsible for patient sexual assaults based on a legal theory called premises liability. Premises liability is a legal concept in personal injury cases where the facility can be held responsible for an injury caused by an unsafe or defective condition.
Let’s go back to the Lusean Arline case. There the nursing home was located near a homeless encampment and in an area with a high crime rate. The lawsuit against Balboa Healthcare says it was foreseeable that a criminal might wander in and either steal from or assault a resident.
Despite knowing that such an assault was foreseeable, the victim claims that the nursing home didn’t take reasonable steps to protect patients. In fact, the victim says that the perpetrator was able to walk through an open door at 3:00 am, walk to the second floor, past a nursing station and into a patient’s room undetected.
The law doesn’t specify what reasonable steps the nursing home should have taken. Reasonable is defined on a case by case basis. Remember, however, that this particular facility was in a high crime area and had an open door at 3:00 am. We are fairly confident a jury won’t find that the nursing home acted reasonably.
What could the nursing home had done better? Locking the outside doors at night? Putting an alarm or bell on exterior doors that alerts staff when doors are opened after hours? Security cameras? Hiring a security guard?
One online review from three years ago says that the facility “doesn’t pay attention to visitors.” While Google reviews can be written by disgruntled workers and are often inaccurate, an inspection report on Medicare’s Compare site indicates during a 2017 site audit, the inspector found that an exit door alarm wasn’t working. Three years later and that same problem probably is responsible for allowing a dangerous parolee to wander in off the street and rape an elderly woman.
Were You Sexually Assaulted in a Nursing Home or Assisted Living Facility?
Sexual assault in nursing homes happen far more than they should. Even one assault is one too many. Assaults on residents fall into three categories, assaults by other patients, sexual assaults by caregivers and assaults by strangers. In all three scenarios, the facility may be liable for monetary damages under a number of different theories.
Although the criminal prosecution of the wrongdoer may bring closure to victims, suing them for monetary damages is nearly impossible. Most criminals don’t have any money. You could conceivably “win” your case but never collect a penny. Hospitals, however, have both a legal obligation to protect patients and they have insurance.
If you or a loved one has been sexually assaulted in a nursing home, adult day care, assisted living facility, you may be entitled to compensation.
Damages available include reimbursement for medical expenses, future medical expenses, pain and suffering, emotional distress, loss of the enjoyment of life and sometimes punitive damages and lost earnings.
We can’t alleviate your suffering but we can make sure those that are responsible pay damages. And by paying damages, we reduce the risk of the same behavior taking place again.
To learn more, contact us online, by email [hidden email] or by phone at 833-201-1555. All inquiries are protected by the attorney client privilege and kept strictly confidential.
Why Mahany Law?
Our founder, attorney Brian Mahany, spent years as a prosecutor and police officer. He also served on the board of directors for the nonprofit Family Violence Project and as a volunteer with the Sexual Assault Crisis and Support Center. We don’t pretend to know the horrors suffered by victims of sexual assault. But we do know how to hold offenders responsible and we are not afraid to take on big insurance companies and nursing home chains that sometimes are more concerned about bad publicity instead of patient safety.