Episode 39

Can a nursing home be held liable for employee negligence?

 

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This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.

Schenk: Hello out there and welcome to  episode 39 of the Nursing Home Abuse Podcast – “Can a Nursing Home be Held Liable for an Employee’s Negligence?” Very interesting topic for today. My name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk: And we are Georgia nursing home abuse lawyers in the state of Georgia and we are your co-hosts for this episode. Glad to have you on board. Happy – as this goes to air, happy Columbus Day, or depending on where you live…

Smith: Yeah, Indigenous People Day, which I got to tell you, I am not a fan of the replacement of Columbus Day with Indigenous People Day, and not because I think Columbus was a good person and not because I think that well it’s just tradition and we should do it that way, I actually think it’s a slap in the face of indigenous people where we have a day to celebrate, “Hey guys, remember when we took all your land and murdered you? Anyways, here’s your day in October. Enjoy.” Let’s just go ahead and get rid of Columbus Day and not replace it with anything.

Schenk: Yeah, it’s kind of like – is it Geronimo?

Smith: No, Crazy Horse.

Schenk: Crazy Horse – they’re building a giant Crazy Horse statue out of a mountain, and there are some people that are against it, some people are for it, and actually there are the family members that are saying, “If you knew anything about Crazy Horse, you would know he wouldn’t want you to deface a mountain to make his image,” like it’s an utter – people don’t…

Smith: It’s actually exactly like the Robert E. Lee controversy, because Robert E. Lee specifically said, “Hey, don’t build any Confederate monuments.”

Schenk: Well anyways, I’m glad we got into the monument abuse podcast, but anyways, we hope you’re doing well on this Monday or whenever you happen to be listening. A lot of good things in the podcast, so we’ll get right into it. And the reason we decided to talk about can a nursing home be held liable for employee negligence is for the fact of a slew of articles that we read from across the country regarding different types of negligence.

The first one comes to us from Napa Valley, California. So Napa Valley Care Center is being sued for negligence of care and supervision after the death of resident Carolyn Johnson. During her stay, Johnson was left unsupervised numerous times to the point where she was left without her nebulizer for four or five nights. Johnson had multiple blood clots in her leg, which were pointed out to staff by the family members, and despite the existence of those clots and the bruising, nothing was done and she ultimately passed away.

And then a little bit later, we have a story out of East Cobb, Georgia, which was Adam Bennett, a 91-year-old patient at Sunrise Assisted Living Center in East Cobb, Georgia, was allegedly beat to death by 33-year-old nursing home employee Landon Terrell. Doctors at WellStar Kennestone Hospital notified authorities on August 15 when the injuries Mr. Bennett received were inconsistent with nursing home staff reports of a fall. Mr. Bennett suffered broken ribs, a lacerated kidney and a punctured lung, and died because of his injuries.

So in this first instance, we have a nursing home that failed to basically see the signs of an oncoming stroke, failed to follow up on evidence of bruising and clots in the legs of a resident, ultimately resulting in catastrophic injuries. It took her life. And then we have another case where the employee allegedly beat a man to death.

So what type of liability is there for the lawsuit and who would be the defendant in a lawsuit in those cases? And the answer to that is theoretically an employee and the nursing could be on the hook for both of those depending on the facts.

Now from a general standpoint, nursing homes are required, if they accept Medicare or Medicaid funding, so basically they’re required by the federal government, and depending on what state they’re in, by state law, to make sure they hire employees that do not have a history of mistreatment, abuse and neglect of elderly. And if they have constructive knowledge of the same, then they are required to notify family, notify the governmental authorities about the same.

When they don’t do that and as a result, an employee beats on a resident or does some type of physical assault, then they can be held, the nursing home can be held liable. The employee definitely can be held liable if it’s intentional, if it’s an intentional act.

Smith: Yeah. Anytime that a person commits a criminal act against you where it involves the same type of damages that you might experience in a personal injury type lawsuit. So for example, aggravated battery or battery in general, you do also have an ancillary civil case against them, but of course the issue comes down to if you’re a CNA, first of all, you’re not required to have malpractice insurance. Second of all, you probably don’t have very much money because, again, you’re a CNA making minimum wage. So yeah, that employee faces some civil liability, but it’s not worth the lawsuit unless you can tie liability to the nursing home.

Schenk: That’s right. So the answer to the question is can the nursing home be held liable for an employee’s negligent acts or intentional acts? Yes on both counts depending on the facts of the case.

Smith: It can be held liable. Now understand that the basic answer here would be the basic answer that you’re always going to get in the field of law, which is it depends. It can, but it depends.

Schenk: But also at the same time, nursing homes that are accepting Medicare/Medicaid funding are required to have certain policies in place that in effect try to minimize the chances of abuse and neglect inflicted by their own employees.

Smith: Yeah, it’s the code of federal regulations, because if they’re accepting federal money, they have to abide by federal law. And there’s a specific code, and I’ll give you the code. It’s 42-CFR-483.13, and essentially it says that a nursing home cannot employ individuals who’ve been found guilty of abusing, neglecting or mistreating residents by a court of law, or had a finding entered into the state Nurse Aid Registry for the abuse, neglect or mistreatment of residents or misappropriation of their property.

So CNAs are licensed by the state, and as such, the state maintains a record of any misconduct by CNAs. So nursing homes are required – they don’t always do this – they’re required to go onto the state website and review this CNA’s record, just like lawyers have records and you can go onto the state bar and see if there’s been any disciplinary action against this lawyer. You can do the same thing with CNAs. And if a nursing home doesn’t do that, they’re in violation of federal law, and if that individual ends up hurting a resident, they can be held civilly liable.

Schenk: That’s right. This case out of Georgia is particularly egregious. So again, you have a 33-year-old nursing home employee. You have a 91-year-old resident. This is an assisted living facility. Cobb County Police Sergeant – this is north of Atlanta – Cobb County Police Sergeant Dana Pierce said officers were sent to WellStar Kennestone Hospital on August 15 after receiving a call from doctors that Adam Bennett of Marietta had injuries not consistent with what the nursing home staff said had happened to him. The 91-year-old suffered broken ribs. a lacerated kidney and a punctured lung, injuries doctors didn’t believe were consistent with falling out of bed, which is what they were told when the man arrived. He died as a result of those injuries.

Investigators traced Bennett’s injuries back to the 33-year-old employee in Powder Springs, and he was charged with felony murder and exploiting a disabled or elderly person. According to the arrest warrants, the individual admitted striking the elderly resident, causing the injuries. The assisted living facility declined to say how long the employee had worked with the company or whether he had been accused of abusing residents in the past. So in this instance, obviously there is criminal liability on the part of the employee

Smith: Oh absolutely.

Schenk: There is going to be civil liability, and whether or not there’s going to be civil liability on the part of the nursing home will depend on several factors based on the constructive knowledge the nursing has regarding his propensity, this employee’s propensity to beat people, whether or not they’ve observed it in the past, things of that nature, and that’ll be an interesting case to follow.

Smith: Yeah. And at the end of the day, and this is not a declaration of whether or not there’s a claim against the nursing home, this has to do with public policy – at the end of the day, the nursing home industry is responsible for this incident, maybe not in a court of law, but they’re responsible to some degree because this is a very stressful job, and these elderly residents are really hard to take care of. You’re working anywhere from seven to 16-hour shifts, and you’ve got some people who just cannot mentally handle it, and I think this guy was not a good fit for this type of environment, and he just lost it. I am certainly in no way, shape or form saying that I agree with his behavior. He’s a criminal and he needs to be put in jail for the rest of his life for the murder of this man, but it’s not unfathomable to me that somebody would lose it and beat a resident, because I think some people just cannot handle the stress of this job. And it is unfortunate that they cannot do a better job of weeding these people out, but that’s just another situation altogether.

Schenk: What do you think about that he was charged with felony murder?

Smith: Felony murder is when in the commission of a felony, the victim dies.

Schenk: That’s right. So I’m assuming then the felony would be assault and battery.

Smith: Well the felony would be aggravated assault or aggravated battery.

Schenk: And the aggravation in this instance would be that it’s an elderly person?

Smith: No – I’m sorry to keep disagreeing with you. I am the former criminal defense attorney here. No, aggravation is – so aggravated battery is where the individual, you hurt a person to the extent that a limb or a body part is no longer functional. So if you cut somebody’s arm off or you break their arm so they can no longer use it, that’s aggravated battery, whereas this technically is battery, just unlawful touching. Aggravation has to do with the fact that it’s a more severe injury. So here it’s the punctured lungs, the ruptured kidneys, the broken ribs – those are the aggravations, the battery. And the aggravation of assault is putting somebody in fear of their life by using your fist. It could be using a gun or a knife, but courts have also held that using your fists can be…

Schenk: In Georgia.

Smith: …In Georgia can be aggravated assault. Of course this is what he’s charged with. It’s not what he’s been indicted with.

Schenk: Correct. But I think an interesting point in this story and something that we can segue into the next kind of segment here is that this doesn’t happen every time. I’m sorry – this hospital alerted the authorities. The hospital observed these injuries and said, “Man, could this have happened to somebody falling out of a bed? Maybe. But what’s the chances of that? Not very much. So we’re calling the cops because we think this guy was beat,” which brings me to a story out of Washington, D.C.

The Nursing Home Complaint Center now urges ER doctors to tell the family of a patient recently transferred from a nursing home if a loved one is now dying or dead because of negligence. This is a story out of TheDigitalJournal.com from August of 2017, so a little bit dated, but relevant.

The Nursing Home Complaint Center in  Washington, D.C. is now urging ER doctors to be candid with family members whose loved ones are sent to the ER with suspected negligence or neglect from a nursing home. The Complaint Center claims short staffing is one of the leading cause of sepsis, injury and even wrongful death in nursing home. In this new initiative, all elders who are admitted to the hospital with cases of sepsis, broken bones or malnutrition should be discussed with family members as these are the most common signs of neglect or abuse. And so the nursing home…

Smith: Yeah, also it’s a Georgia law too.

Schenk: Okay. So it’s interesting that under the law, there are certain persons that are obligated to report abuse and such to the authorities.

Smith: They’re called mandated reporters.

Schenk: Right, but what I think is interesting in this case and what this article is trying to say is I feel they’re trying to expand the symptoms that you would report. Like if it’s just – generally malnutrition wouldn’t automatically require somebody to alert the authorities on their own. It’d generally be bad malnutrition, like severe weight loss in a short amount of time, or contemporaneously with other injuries that would warrant a report to the authorities, but I think it’s interesting that more and more light is being shed on who is required and when they would be required to report on abuse.

Smith: And why. And just for a clarification here because this is actually an important technical issue here because of the repercussions, we have said time and time again that we have used the term “nursing home abuse” because people are familiar with it to also mean negligence, but they are two different phenomena. So abuse is intentional striking of a resident, emotional abuse, physical abuse.

Schenk: Anywhere where the person is intending the result of their behavior.

Smith: Intending the result of their behavior. It’s not a breach of the standard of care, which is negligence. So what Rob was just talking about is it is clear, and in Georgia, the mandated reporters for elder abuse are the same mandated reporters for child abuse, so if you’re a healthcare professional, clinical psychiatrist, somebody like that, it even includes chiropractors, which is crazy, or daycare personnel, social workers, and you notice that a child or an elderly person appears to be intentionally abused, you’re required to say something. They’re starting to expand it to expand the negligence aspect of that, which is pretty phenomenal. So now it’s not just, if you can imagine the direction that it’s going, it could not just be it looks like somebody has been physically abusing this elderly resident because these bruises are more consistent with punching than falling. It could could end up being, “Hey look, this bedsore,” – and I’m not saying it’s there yet – “But this bedsore is inconsistent with this person’s condition and it’s more consistent with negligence, so we’re going to report it to the state,” and that would be phenomenal if that ever ended up being that way.

Schenk: That’s right. Well I think that pretty much concludes this particular episode. I wanted to make a clarification that Crazy Horse as we mentioned before at the outset of this episode, like Robert E. Lee, Crazy Horse resisted being photographed and was deliberately buried where his grave would not be found.

Smith: Interesting.

Schenk: Yeah, that’s according to Wikipedia. And actually right now, there’s going to be a picture of Crazy Horse’s monument, if Jean, our producer, remembers to edit that in. Jean, can you get a picture of the Crazy Horse monument?

Smith: Jean?

Schenk: Jean, can you remember that? Put that in there, whatever minute we’re on right now.

Smith: Yeah.

Schenk: Anyways, just to let you know that this is not just an audio podcast, it is a video podcast, meaning you can download the audio or MP3 every Monday morning on Stitcher or iTunes or wherever you get your audio podcast, or you can watch us on YouTube or on our website, NursingHomeAbusePodcast.com, that is NursingHomeAbusePodcast.com. And with that, we will see you next time.

Smith: See you next time.

Thanks for tuning into the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher and feel free to leave us some feedback. And for more information on the topics discussed on this episode, check out the show website – NursingHomeAbusePodcast.com. That’s NursingHomeAbusePodcast.com. See you next time.


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