A local New York paper just reported a certified nursing assistant (CNA) is facing criminal charges for “hitting, grabbing and punching the visually and dementia-impaired woman … leaving her with a broken collarbone and facial bruising.” The other nursing home staff noticed the injuries the next morning and immediately notified the administrator. The nursing home also immediately fired the nursing assistant and notified the family. A nursing home spokesperson said the nursing home has a “zero-tolerance policy on abuse and that all staff and employees are put through a rigorous screening and background check before they are hired.”
David’s Comments: This article raises several issues worth discussing. First and foremost, the nursing home did the right thing by immediately reporting the event. Both Georgia and the Federal government require reporting of nursing home abuse. I would hope a jury would punish any nursing home that waits to report such an event, especially if there is record tampering associated with the investigation. The defense will argue the nursing home met its standard of care in hiring employees by doing a background check - assuming it was a proper and thorough check and was clean. They will also argue the criminal act was unforeseeable. In Georgia, the law is an employer is not liable for the unforeseen criminal acts of its employees. Essentially the courts take the position that everyone is expected to not break the law and you can’t hold an employer responsible for this. Now if the employee had a history of other impulsive acts or abuse, the employer can be held liable because they were on notice of the potential for this employee to assault someone and the nursing home should not have continued to employee him.
Let’s talk for a second about human behavior. Any good trial lawyer will always explore the story of all the characters involved in the case so a jury can engage with the human drama associated with a case. Physical abuse by a caregiver is more likely impulsive behavior rather than an unprovoked malicious assault. A nursing assistant may grow frustrated by a resident’s resistance to care or verbal abuse, which can be common with residents suffering from dementia. The biggest factor in an employee “snapping” is poorly managed personal or workplace stress or “burnout.” In addition to the stress being personal, the nursing home can contribute to the employees stress by understaffing the facility, improperly training the staff, and failing to monitor the staff for burnout. The plaintiff’s lawyer needs to anticipate a jury may empathize with the employee and what she/he had to go through if the resident was abusive towards the nursing aid and develop a case theme around it.