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Legal Speak

Which Type of Case Would You Rather Defend?

Published September 4, 2013 12:15 PM by Tony DeWitt
From Colorado comes a story of a nurse assistant who was accused of raping an elderly resident. There is almost nothing that produces lawsuits quicker than a resident alleging rape in a credible manner. The incident in Colorado is made worse by the fact that, after the nursing home conducted an "internal investigation" it allowed the rapist to return to work, only to call the police when a second resident later complained about sexual assault.

The nursing home's assumption that the elderly resident was confused is probably a reasonable one. The conclusion that the incident was unfounded, however, may not have been. When this case goes to trial (and you can bet a lawsuit is being prepared even now), the real question will be how did the nursing facility conduct its investigation.

We all want to believe that we are good judges of character. We all want to believe we can spot a pedophile, or an abuser of elders, just by the way they conduct themselves. But the fact is that people who have these kinds of predilections tend not to show up on anyone's radar, and that's why they have almost always abused dozens of people before they are caught.

An allegation of sexual abuse should be met with immediate suspension (and indeed, that's what this facility did). The investigation should be conducted carefully, and it should focus not only on what the resident says, but on what physical evidence is available to support an allegation of rape or sexual contact. Because this is not in the domain of your average nurse or administrator, this is an investigation that must be conducted by a trained detective with the local police department.

Detectives who interview these kinds of suspects tend to have their own methods of identifying individuals who commit these kinds of crimes. If an employee refuses to be questioned by the police on this issue, the result should be immediate termination. This is not a judgment that the employee is guilty, it's a judgment that the risk to the facility that he may be is simply too great to allow the employee to continue working.

If an employee comes back clean, and if the police determine the event is unfounded, it is still a good idea to have the employee work only with same-sex residents, and only under close supervision for the next 60 to 90 days. Any complaints or any suspicious behavior should be a red flag.

Sexual assault is like a throwing a plate on the ground and breaking it. You can say "I'm sorry" to the plate all day long, and it's not going to be made whole. You can do everything right after an initial assault and often avoid liability because rape of a patient is usually a criminal act that but for some kind of notice, the facility could not reasonably anticipate. But once there is an allegation - even one that is determined to be unfounded - then if there is a second credible allegation later the liability issue is going to be exceptionally difficult.

It is far better to defend a wrongful termination lawsuit than it is to defend a lawsuit involving allegations of sexual abuse by someone who was previously reported for the same conduct. Given the choice, I'd take defending wrongful termination every time.

posted by Tony DeWitt


Legal Speak : Which Type of Case Would You Rather Defend?

October 26, 2014 3:39 PM

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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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