California Accident Attorneys Blog
Facts of the case
A 29-year-old woman who is a member of the San Carlos Apache tribe in Arizona suffered a near-drowning incident. She has been in a coma ever since for more than a decade. The woman has lived in a long-term care facility called Hacienda Health Care in Phoenix since that time. On Dec. 29, the woman gave birth to a baby despite the fact that she has never regained consciousness from her coma.
Police officers served a search warrant at the facility on Jan. 8 to collect DNA from all of the male employees. The woman could not have given consent for the sexual contact because she is in a coma. This means that whoever had sex with the woman committed a sexual assault and could face substantial criminal liability. The woman’s family issued a statement saying that they were horrified about the abuse and neglect of their daughter. They also stated that the woman’s baby would be taken care of by their family.
If the perpetrator is discovered, he will face criminal charges that could result in decades in prison. In addition, the facility could also be liable under a couple of different legal theories. Here is how a family might be able to hold a facility liable if such an incident occurred in California.
Potential liability because of negligent hiring, retention, or supervision
In California, an employer may be held to be directly liable when the actions of an employee cause harm to another person in certain situations. Under this theory, an employer is directly liable when it fails to take action to protect others from harm.
Negligent hiring, retention, and supervision is a tort that arises out of the common law. It is important for victims because many employees do not have sufficient resources to pay compensatory damages for the victims’ losses on their own. By having the ability to hold the facilities for which they work liable, the victims may be likelier to be made financially whole.
To hold a facility such as Hacienda Health Care liable under a theory of negligent hiring, retention, or supervision, plaintiffs must be able to prove each of the following elements:
- The employer hired the employee;
- The employee was unfit or incompetent to do the job for which he or she was hired;
- The employer either knew or should have known that the employee was unfit or incompetent or became unfit or incompetent;
- The employee’s lack of fitness or competence caused harm to the plaintiff; and
- The employer’s negligence in hiring, retaining, or supervising the employee was a contributing factor to the plaintiff’s harm.[1]
There are a few ways in which this theory could be used in a case against Hacienda Health Care. All applicants to nursing homes are required to submit their fingerprints to the state for a background check as a part of the hiring process under the Cal. Code of Reg. Title 22 § 87355.[2] If a nursing home failed to complete the background check before hiring an employee who had a record of past abuse, the nursing home could be liable under a theory of negligent hiring.
If the home did complete the background check, and it was clear, the facility could still be liable for failing to adequately supervise the employee. Many nursing homes are chronically understaffed, and the facilities may not supervise their staff members properly. Finally, if the facility learned that an employee had a propensity to commit sexual abuse or other types of abuse but negligently retained the employee, the facility could also be liable.
Potential facility liability under California’s dependent adult abuse statutes
Dependent adults in California include people who are elderly, developmentally disabled, or who have mental health impairments that cause them to be dependent on others for their care. Many dependent adults live in residential care facilities such as nursing homes. Unfortunately, exploitation and sexual abuse of dependent adults is far too common.
As we have previously noted, dependent adults are protected under California’s dependent adult abuse statutes.[3] Under these statutes, a facility may be liable for the abuse of a dependent adult when its negligence was a cause of the harm. When a facility is found to have physically or sexually abused a patient in its care, it may have to pay compensatory damages to pay for the victim’s economic and noneconomic losses. It may also have to pay punitive damages which are damages in excess of the victim’s losses in order to deter future misconduct. Finally, a facility may have to pay reasonable attorney’s fees and costs.
Liability if another resident assaulted the victim
Sexual assaults in nursing homes are sometimes perpetrated by other residents instead of by employees or staff members. Nursing homes may still be liable when patients are assaulted by other residents if the facilities knew or should have known that the perpetrators had propensities to harm others.
In one case in Pennsylvania, a jury returned a verdict of $7.5 million to the estate of a woman who was sexually assaulted by another resident of the nursing home in which she lived.[4] The facility knew that the other resident was a convicted sex offender but did nothing to protect the woman from harm. The woman suffered from dementia, and the offender targeted her because of her mental incapacity. The man had previously threatened to sexually assault a caregiver, and he was allowed to remain living in the facility despite the fact that he no longer needed care.
That case caused the public to call for background checks of nursing home residents in addition to the employees. However, background checks of nursing home residents are required in only a handful of states. They are not currently required of people who will reside in nursing homes in California.
However, if a facility knew or had reason to know that a resident was dangerous to others and failed to protect the other residents, the facility could be liable because of its negligence.
Contact an experienced Los Angeles dependent adult attorney
If your loved one has been sexually or physically abused in a nursing home or has been the victim of nursing home neglect, it is important for you to get legal help. You should contact the authorities to report your suspicions and move your loved one to a safe environment. You should also consult with an experienced dependent adult attorney in Los Angeles. Many of these cases are difficult to prosecute in the criminal courts. You might be able to hold the facility liable by filing a civil lawsuit even if it is not successfully prosecuted under the criminal law. Contact the Law Offices of Steven M. Sweat today to learn about the rights that you might have.
Resources
[1]https://www.justia.com/trials-litigation/docs/caci/400/426/
[3] https://www.victimslawyer.com/dependent-adult-abuse.html
[4] https://www.jdsupra.com/legalnews/are-criminal-background-checks-for-11548/