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New Nursing Home Decision Releases Executive From Personal Liability

In an interview for a Lawyers.com story about the methods that nursing home companies take to avoid liability, our Illinois nursing home neglect attorney Steve Levin explained that it is often necessary to hold the individual nursing home executives personally liable for the harm caused by inadequate nursing home care. Complex corporate structures are used by these facilities to avoid paying out for the damage their negligence causes. Striking directly at the decision makers who allowed the negligence to occur, outside of the protective corporate structure, is often the best way to get around these stall tactics and actually provide families with justice following nursing home neglect and abuse.

However, nursing homes defendants continue to use every trick in the book to try to thwart these tactics. You can be sure that they always try to attack effort on the part of nursing home neglect lawyers to hold executives personally liable. Sometimes they are successful, sometimes they are not.

The City Wire recently reported on one case where defense attorneys were able to get a court to throw out the part of a nursing home neglect lawsuit involving the personal liability of an executive. The case stems from the mistreatment of a woman who entered a facility (in Arkansas) to receive close care following a stroke. The woman had severe disabilities after the brain injury and was totally dependent on the care of staff members at the home. Unfortunately, that close care was not provided, and the woman’s conditioned deteriorated rapidly while she was at the home. She ultimately died as a result of the mistreatment.

Not long after, the executor of the woman’s estate filed a lawsuit against the various legal entities which ran the facility. In addition, they included as defendant a man who was either president or board of director’s member of each of those entities. In the suit the plaintiff alleged that the executive was personal liable because of his egregious conduct, which involved slashing budgets and eliminating positions which made it impossible for the woman at the home to receive an appropriate level of care. The trial court ultimately agreed and awarded the plaintiff a range of damages for negligence against both the company and the executive himself.

However, the defendants appealed and were able to get the portion of the award against the executive thrown out. The original basis for personal liability was found in the Code of Federal Regulations (42 C.F.R. §483.75(d)) which requires all Medicare and Medicaid participants to have a governing body that is liable for potential harm caused by implementation of facility policy. The man in this case was the sole member of that body and so, it was argued, owed a personal duty to facility residents.

The state’s Supreme Court recently disagreed. Essentially, they found that there executive did not owe a duty to the individual resident in this capacity. The ruling basically suggests that to create a personal duty one must be providing actual hands-on care to a resident and not making decisions at the company-wide level. This is one state’s decision that does not impact rulings in our state. However, it is still important to note that the logic behind the ruling is a bit odd and against the spirit of ensuring proper care at these facilities. If nursing home owners are essentially immune from liability for the harm that they cause by their decisions, there is little motivation for them to ensure proper care is provided at all times.

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