If the Nursing Home is caring for a person they understand to be so unsupervised and so out of control as to injure another resident it is THEY THEMSELVES who are liable. They are liable for the care of this person who is out of control of their own faculties; they are responsible. If they cannot control her and manage her sufficiently she should be moved to a place of better supervision and her family notified, her physicians notified, or the state (who may be her guardian) notified that they do not have the proper facilities or staffing to supervise her. So it is the facility itself that is liable. Not the patient. If your Mother is injured and in the hospital it is time to see a lawyer now. You should also be filing assault report with the police. It is a matter of the facility. Notify them; ask for an ombudsman now. They are out of line.
So your mom was actually hurt in a facility, EMS came out and took her to ER/ED and mom is hospitalized due to the attack? Who is not allowed / “no come back”? Is it your mom or is it the person who obstensibly hit her that is not allowed back???
At a minimum, an incident report should have been done at the facility. It would be requested by the DON / Director of Nursing and done by the floor RN or the social worker at the facility. If this is a skilled nursing care facility and getting MediCARE or Medicaid, an incident report is required to be done.
if you are moms DPOA, you should ask for a copy of the report from the facility and all the notes / records from EMS and the hospital. Then read them to see if they are accurate as to what your mom said happened. If everyone involved had dementia and there is no CCTV footage or staff that can account in person in detail as to what happened for the whole time, then it can be hard to prove as to whom was the instigator. If there has ever been any other issues with your mom, any complaints against her & they are in her health chart it will make all this difficult to deal with. So if it’s that your mom is the one not allowed back, I’d be concerned that your mom has been written up as to past behavior….. if this is it, she’s going to need to find a bed in a facility that does behavior modification or is a psych facility. This is complicated to get done. More on this below….
if there is no incident report, and mom is back at the facility, I’d suggest that you send a certified letter to the facility asking for the details as to what happened and what proactive measures are being done to ensure that this type of incident will not happen again for both your mom and other residents. And you want a response within 30 days. If nothing happens, then you can file a complaint with state regulators, Medicaid and Medicare.
if it’s the situation that mom is still in the hospital & her old place will not allow her to return, that’s way way different. It will be hard to force them to take her back as they can say her care needs are beyond the level of care they r able to provide. If this is the situation, the discharge planner at the hospital will have to find a new facility for mom to go into. That’s what the discharge planner does. HOWEVER please please pls realize that often the planner will do their best to have family come and take the patient home from the hospital as it solves the problem for them. If any documentation in moms chart (both at the hospital, the ER of NH/MC) reads that mom has been violent, the discharge planner will have a very hard time to find her a place in most NH or MC and the planner will pressure you to take her into your home from the hospital. Assuming you & your family cannot provide or pay for 24/7 care in your home, You will have to hold firm & definite that you cannot provide a safe and secure placement for your mom and they (the planner) will need to find a facility for her.
Patients with dementia are considered mentally incompetent and therefore not responsible for their actions. If the attack occurred in a facility, the administration of the facility might be guilty of negligence for not providing sufficient security to the residents.
Lorraine, this is a question only an attorney can answer. Several levels of liability may be involved.
1. I'm assuming this occurred in a memory care facility. What do their admission documents provide, and how is this kind of situation addressed in those documents? I suspect they've established that they're not responsible. CYA provisions can be included right up front, to establish a no recourse situation against the facility.
You'd have to file suit, cite precedents as well as legal standards and liability to get past this level.
2. Liability might also depend on the level of dementia the assaulting individual has.
3, Liability may also depend on the circumstances.
4. Do you have any documented data on the last two issues?
5. If you want to hire an attorney, be prepared for a search; There are only certain caliber attorneys who would take on a case like this, ones who like publicity and know how to leverage it to get a better settlement.
6. You might have more luck hiring an attorney to obtain medical records of the injured woman as well as the offender, but more than likely the facility would stall unless the records were subpoenaed.
7. If the facility knew this man was prone to violence, but allowed him to mingle with others, that does suggest some liability on the facility's party. This could fall under the "facility had knowledge of propensity for violence but failed to create oversight and/or restraining options."
But again, that's really a legal issue and w/o records, no one here can advise one way or another that liability could be argued and/or proven.
8. I'm not very familiar with memory care other than a few interviews, so others will probably have better suggestions for dealing with that entity. You could do some online research to determine if it's part of a chain, or one of many facilities operated by a larger entity.
9. If your (or an attorney's) research verifies that this memory care is owned by, say, a joint venture, there might be recourse against that higher level entity, especially if the woman (your mother?) has permanent injuries from the assault, and/or if her family incurred expenses for care.
I'm sorry that this woman (your mother?) was injured, but I think the better recourse is to consider (a) whether you should find another memory care facility, and/or (b) report the incident to a state oversight board, which may have jurisdiction over memory care facilities.
So it is the facility itself that is liable. Not the patient. If your Mother is injured and in the hospital it is time to see a lawyer now. You should also be filing assault report with the police. It is a matter of the facility. Notify them; ask for an ombudsman now. They are out of line.
Who is not allowed / “no come back”? Is it your mom or is it the person who obstensibly hit her that is not allowed back???
At a minimum, an incident report should have been done at the facility. It would be requested by the DON / Director of Nursing and done by the floor RN or the social worker at the facility. If this is a skilled nursing care facility and getting MediCARE or Medicaid, an incident report is required to be done.
if you are moms DPOA, you should ask for a copy of the report from the facility and all the notes / records from EMS and the hospital. Then read them to see if they are accurate as to what your mom said happened. If everyone involved had dementia and there is no CCTV footage or staff that can account in person in detail as to what happened for the whole time, then it can be hard to prove as to whom was the instigator. If there has ever been any other issues with your mom, any complaints against her & they are in her health chart it will make all this difficult to deal with. So if it’s that your mom is the one not allowed back, I’d be concerned that your mom has been written up as to past behavior….. if this is it, she’s going to need to find a bed in a facility that does behavior modification or is a psych facility. This is complicated to get done. More on this below….
if there is no incident report, and mom is back at the facility, I’d suggest that you send a certified letter to the facility asking for the details as to what happened and what proactive measures are being done to ensure that this type of incident will not happen again for both your mom and other residents. And you want a response within 30 days. If nothing happens, then you can file a complaint with state regulators, Medicaid and Medicare.
if it’s the situation that mom is still in the hospital & her old place will not allow her to return, that’s way way different. It will be hard to force them to take her back as they can say her care needs are beyond the level of care they r able to provide. If this is the situation, the discharge planner at the hospital will have to find a new facility for mom to go into. That’s what the discharge planner does. HOWEVER please please pls realize that often the planner will do their best to have family come and take the patient home from the hospital as it solves the problem for them. If any documentation in moms chart (both at the hospital, the ER of NH/MC) reads that mom has been violent, the discharge planner will have a very hard time to find her a place in most NH or MC and the planner will pressure you to take her into your home from the hospital. Assuming you & your family cannot provide or pay for 24/7 care in your home, You will have to hold firm & definite that you cannot provide a safe and secure placement for your mom and they (the planner) will need to find a facility for her.
1. I'm assuming this occurred in a memory care facility. What do their admission documents provide, and how is this kind of situation addressed in those documents? I suspect they've established that they're not responsible. CYA provisions can be included right up front, to establish a no recourse situation against the facility.
You'd have to file suit, cite precedents as well as legal standards and liability to get past this level.
2. Liability might also depend on the level of dementia the assaulting individual has.
3, Liability may also depend on the circumstances.
4. Do you have any documented data on the last two issues?
5. If you want to hire an attorney, be prepared for a search; There are only certain caliber attorneys who would take on a case like this, ones who like publicity and know how to leverage it to get a better settlement.
6. You might have more luck hiring an attorney to obtain medical records of the injured woman as well as the offender, but more than likely the facility would stall unless the records were subpoenaed.
7. If the facility knew this man was prone to violence, but allowed him to mingle with others, that does suggest some liability on the facility's party. This could fall under the "facility had knowledge of propensity for violence but failed to create oversight and/or restraining options."
But again, that's really a legal issue and w/o records, no one here can advise one way or another that liability could be argued and/or proven.
8. I'm not very familiar with memory care other than a few interviews, so others will probably have better suggestions for dealing with that entity. You could do some online research to determine if it's part of a chain, or one of many facilities operated by a larger entity.
9. If your (or an attorney's) research verifies that this memory care is owned by, say, a joint venture, there might be recourse against that higher level entity, especially if the woman (your mother?) has permanent injuries from the assault, and/or if her family incurred expenses for care.
I'm sorry that this woman (your mother?) was injured, but I think the better recourse is to consider (a) whether you should find another memory care facility, and/or (b) report the incident to a state oversight board, which may have jurisdiction over memory care facilities.