A $1.2 million nursing home abuse damage award was affirmed by the U.S. Court of Appeals for the Tenth Circuit after finding no reversible error by the trial court.
The jury had decided the case in favor of plaintiff, who alleged negligence, negligence per se and intentional infliction of emotional distress, concluding also that defendant nursing home had acted with reckless disregard for the rights of others, resulting in a $10,000 punitive damage award tacked onto the $1.2 million in compensatory damages.
The case involved an elderly nursing home resident who was limited in her capacity for mobility and communication due to arthritis and dementia. She had lived on her own until she was 90-years-old, at which time her family arranged for her to stay at a nursing home to receive constant care. At some point, her family began to notice personal items missing from her room. When they received an unsatisfactory response from the nursing home, they installed a hidden camera in her room to get to the bottom of it. What they discovered was much worse than theft.
In a series of five clips that were later played for the jury, two nursing home employees subjected the elderly woman to abuse. In one video, she was slapped in the face with a glove. In another, a wad of gloves was stuffed into her mouth and forcibly held there. The employees roughly lifted her from her wheelchair and held her down on the bed. In another clip, one of the employees was seen yelling at her. At another point, the employees pushed on the woman’s bladder, apparently in an attempt to empty her bladder so diaper changes would be less frequent.
It was later revealed the two employees had numerous write-ups in their personnel files throughout this time period. Those infractions included failure to show up for work, sleeping on the job, refusal to complete assigned duties, leaving residents with wet diapers, leaving in the middle of their shifts and using a cell phone at work. One of the workers had been recommended for termination, but she was never actually fired. In fact, one was responsible for training new certified nursing assistants.
When the family brought the videos to the nursing home, the police were contacted and the workers arrested. One was later convicted in criminal court, served her time and was later deported. The other worker disappeared.
The victim died just three months after the nursing home abuse was discovered.
Nursing home administrators testified that the abuse suffered by victim was “utterly intolerable,” yet there was a great deal of evidence supporting the assertion the company was directly negligent in its failure to investigate and report the abuse. There was no record of any investigation of these incidents, even after nursing students apparently reported at least two incidents to administrators before the family discovered what happened. At no point did the facility report the abuse to the state health department, as required by law. Further, a review of the victim’s medical chart revealed it was disorganized and certain types of care information were not contained therein. The director of nursing was unable to identify the aides in the video, even though she held the position for several years and these were her direct employees.
On appeal, defendant nursing home argued there had been erroneous admission of evidence. The appellate court found no error.
Nursing homes can be found both directly and vicariously liable when abuse occurs on site. Direct liability involves proving the facility/ administrators were in some way negligent. Vicarious liability, however, requires a showing that employees acting in the course and scope of employment were negligent/ engaged in criminal conduct.
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Racher v. Westlake Nursing, Sept. 28, 2017, U.S. Court of Appeals for the Tenth Circuit
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