October 20, 2012

Settlement in Wrongful Death Lawsuit Following Nursing Home Rape

by Levin & Perconti

Perhaps the most heart-wrenching form of abuse and neglect at assisted living facilities and nursing homes invovles sexual assault. Many seniors living in these communities have very unique vulnerabilities. That makes them prey to those willing to commit the most harmful and invasive acts on those unable to properly defend themselves. Nothing is more personal and protected than our own bodies, and to have that body forcefully attacked and invaded in always unacceptable. For this reason, nursing homes must, in all circumstances, do everything in their power to prevent exploitation of elderly community members in their care.

Often the biggest threats comes from inside the nursing home itself. Resident on resident attacks--physical and sexual--are far more common than most appreciate. Nursing home owners, administrators, and caregivers know this, however. That means that it is never acceptable for these responsible parties to argue that the attacks were unforseen or that nothing could have been done to prevent it. In almost all cases, when resident on resident incidents are fully investigated, it becomes clear that certain warning signs were missed and basic safety protocols were ignored which allowed the attack to occur. At those times, full legal accountability must be had. It is only then that the home is pressured to make change to improve safety. Also, holding nursing homes accountable for these incidents may even influence the conduct of facilities not named in the suit. Other nursing home owners and operators may pay attention to the consequences of misconduct at other homes and change their own protocols in order to prevent similar attacks.

Recent Case
One recent legal case involving these issues illustrates how facilities are able to be held accountable following a serious incident. A JS Online story this week explained how a settlement was reached between two parties following the sexual assault and ultimate death of a 90-year old nursing home resident. According to the story the nursing home resident was attacked in January of 2009 while living in the home. She died two and a half weeks later. Negligence and wrongful death claims were eventually filed by the resident's family.

Those claims alleged various problems at the home. Most notably, the article argues that the sexually agressive resident who perpetrated the attack was left unattended by nurses who knew of his proclivities. The resident had sexually assault another female resident earlier. By not properly protecting other residents, their negligence allowed the attacks to occur. In addition, the claims suggest that the staff at the facility were not properly trained on the risks and prevalence of resident on resident attacks. Their lack of proper understanding of the issues was a factor in their poor preparations which allowed the assault to occur.

Eventually this case went to trial. However, after four days of trial, the parties were able to reach a settlement without the need for a jury to decide the matter. Many community members are surprised to learn that many cases settle in the middle of trial. Settlements are usually preferred because they are more efficient, less costly, and allow both sides to agree on fair compensation following an incident. In that way, if forcing a judge or jury to decide can be avoided, then that is almost always the best option.

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