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October 05, 2015

Resident on Resident Abuse - a Basis for Even More Lawsuits Against Long Term Care Facilities?

The Buffalo News recently published a colorful article about resident on resident abuse in long term care facilities.  The News labels such abuse as a “common problem” citing a 2014 Cornell University study that found one in every five long term care residents experiences some form of aggression at the hands of other residents  The study focused on only New York based facilities.  Thankfully, the Buffalo News article also states that serious assaults among residents are very rare and that the Cornell study in no way placed blame on facility administration or staff.

So, there is nothing to be concerned about, correct?  Not so fast!  An internet search reveals numerous plaintiffs’ law firms have cited to the Cornell study, on their websites, in an effort to market the issue to the general public.  These law firms reference only certain portions of the study leaving out those findings that actually support the facilities, such as the rarity of serious assaults.  The result of these marketing efforts will certainly lead to lawsuits.

Analyzing our ability to successfully defend against these lawsuits can be done only on a case by case basis.  However, the legal theories to be used by plaintiffs’ attorneys are not difficult to predict.  Many of the web blogs already set forth legal theories such as the general duty to keep residents safe from harm and the duty to provide close supervision on all residents.  The specific claims of negligence will likely include the familiar allegations of insufficient staffing and/or the failure to implement proper policies and procedures.  Expect to also see corresponding complaints made by residents to the Department of Health.  Plaintiffs’ attorneys often instruct their clients file such complaints so they can then utilize the DOH findings to help shape and support their case.

The absence of a significant physical injury will likely not be a deterrent.  New York’s Public Health Law 2801(d) allows a resident to commence an action without first sustaining a physical injury.  The statute also allows a resident to seek punitive damages in more egregious cases such as if a facility admits a known dangerous resident or fails to remove a resident with an abusive past.

It is always best to address a potential lawsuit or government investigation as soon as possible.  Call your experienced health care attorney immediately after any incident involving resident on resident abuse.

Below is a link to both the Buffalo News article and the Cornell University study.

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