How to Handle Nursing Home Sexual Assault Claims
Addressing these cases requires not just awareness but a proactive legal approach to protect and seek justice for victims. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Ashley Hadler to discuss the complexities of handling nursing home sexual assault cases, exploring both the legal framework and the emotional support necessary for survivors and their families.
Schenk:
Understanding nursing homes, sexual assault cases. Stick around.
Hey out there. Welcome back to the nursing home abuse podcast. My name is Rob. I will be your host. for this episode. Today, we are talking about the intricacies of nursing home, sexual assault cases. What makes them different than your typical nursing home case? What makes them more difficult or less difficult?
What are some of the considerations? What are some of the defenses, but we’re not doing that alone. We have the terrific trial attorney. Ashley Hadler with us today to talk about that.
Again, we’re going to be talking about the the typical nursing home sexual assault cases case. What sets that apart from others? But we’re not doing that alone. We have the tremendous trial attorney, Ashley Hadler. Ashley Hadler represents survivors and families affected by sexual abuse, nursing abuse and medical malpractice in Indiana and Illinois.
She began her career in Chicago advocating against major hospitals and nursing home chains. Ashley specializes in cases involving trauma. complex medical issues and elder abuse. She is the past vice chair of the young lawyers council of the national crime victims bar association and serves on the Indiana trial lawyers association executive board.
And we’re so happy to have her on the show today. Ashley, welcome to the show.
Hadler:
Hi, thank you. Thanks for asking me to be here today.
How do you select sex assault cases?
Schenk:
Yes, ma’am. I’ve had a couple of episodes dedicated to what makes sexual assault cases in nursing homes. A different breed, but I wanted to have you come on because this is, I’m not gonna say it’s your bread and butter, but you have a lot of experience in, in these type of cases.
And I wanted to get your perspective on them. And the first question that I would have for you is, What are you as the attorney looking for in whether or not you’re going to take on a particular sexual assault case in the nursing home? Kind of what are your variables?
Hadler:
That’s a great question.
I think typically I go into evaluating those cases similarly to other nursing home cases. What is the evidence? That we know exists or we know should exist. Of course, that always begins with a thorough interview with the family about everything they’ve been told. A review of any materials generated or gathered by third parties.
This is one where the State Department of Health can be of great assistance if they’ve performed an independent investigation. You may also have Adult Protective Services. For more information, visit www. fema. gov or police who have investigated. So I always ask the family about any third parties that they know of that have been involved.
Because we’re looking for something that’s going to help us meet our burden of proof there. Of course we know that is going to be a key to pursuing any nursing home case. And then I also want to know about the damages. I know damages can be presumed in most sexual assault cases, but I want to make sure that the person has been receiving some type of treatment.
Or if they haven’t been able to receive treatment yet to know whether or not there is a source of documentation or observation for any behavior changes and symptoms that the person may be experiencing.
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Schenk:
That is a really interesting point. Can you can elaborate on that in terms of like, why would it be important for you to understand and know whether or not the res, the victim is being treated for what happened
Hadler:
primarily for their well being.
First and foremost, I, I want to make sure that families who may not have experience with. sexual assault, know the type of impact that it can have on a person, no matter their cognitive status. A lot of my nursing home clients have severe cognitive deficits, and just because they can’t express and articulate what they’re going through doesn’t mean that they aren’t experiencing severe emotional trauma.
First and foremost, we want to make sure that the person is getting the help they need so that they aren’t suffering unnecessarily more so than they already are. But I also want to make sure that we have the treatment piece in place so that we don’t run into any type of defense that the family or the person failed to mitigate their damages or that they did not seek treatment.
and therefore there was no harm. So I think, we want to make sure that survivors of sexual assault get help right away, immediately and get a treatment plan in place and then keep that going because the treatment plan will look different as time passes and it looks different for every person.
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Schenk:
What would you say to the family member of a loved one who’s been sexually assaulted, but maybe has severe dementia, as you mentioned there’s a issue with mental status and they would not be a candidate for therapy. They would not be a candidate for any type of psychoanalysis or that type of thing.
What do you say to that family member that says I can’t do anything like what can we do in that situation and how do, how would we defeat the argument that this individual, although it was atrocious, what happened to them, they’re not injured because they would not have the cognitive capacity to be injured.
And that’s interesting. That’s actually Something that my, my partners and I addressed in a case that was set for trial just a few months ago, and we depend very heavily on experts in the field, expert psychologists, forensic psychologists, neuropsychologists, if the person has severe cognitive deficits and there’s a lot of literature out there at this point that shows that effect and can help to combat the idea that just because a person has memory problems that they aren’t experiencing trauma.
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So I would say to a family member, just because someone is not a candidate for talk therapy, and that can be true, of victims of any age, talk therapy may not be useful to someone at certain Points in time. But certainly getting in touch with their primary care physician, talking about anxiety, medication, depression, medication, something for insomnia.
If that’s an issue, making sure the person is receiving what they need acutely in that moment to help them manage those severe symptoms. And then talking about other types Of things to help them cope. Would it be better for them to move to a different facility? Are there environmental triggers?
Are there other triggers that we should know about based upon the gender of the perpetrator, the age of the perpetrator, physical characteristics? How can we make sure that we are getting a plan in place to protect them from what they’re already suffering and then prevent their exposures to things that are going to trigger them and bring back these?
painful memories.
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Are employees or other residents more often the at-fault party?
Schenk:
You mentioned the perpetrator. What would be your perspective on maybe some of the primary differences between when the perpetrator is another resident or when the perpetrator is actually a caregiver at the nursing home?
Hadler:
Depending on the law in the state where the act occurs, there can be Tremendous implications to that.
You have different causes of action that you’re thinking about when it’s an employee versus some other third party, whether it’s another resident or, A vendor, a family member of another resident in the building who just happens to be visiting. Um, from a legal perspective, you’re thinking about, is this negligent hiring?
Is this negligent supervision? Are we just looking strictly at vicarious liability if it’s an employee? And if you are, is a nursing home a common carrier in your state? I practice primarily in Indiana and Illinois, and here in Indiana it’s established by Indiana Supreme Court precedent that nursing homes are common carriers.
So for those cases, if we have an employee or an agent who assaults someone, they are in the course and scope and the nursing home is responsible from a vicarious liability standpoint. Thank you. If we are looking at another resident or someone that the facility does not employ or have an agency relationship with, then we’re thinking about.
something more in the medical malpractice context. We’re failing to supervise the injured resident. You’re looking at different burdens of proof. You’re looking about potentially different administrative procedures. You have to go through different causes of action, different availability on elements of damages.
So that’s a pretty, pretty detailed analysis depending on the facts and circumstances of the assault.
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What evidence do you request from the nursing home in a sex assault case?
Schenk:
That’s interesting about the vicarious liability in, in, in your jurisdictions. It wouldn’t be a part of your analysis necessarily the amount of notice that the nursing home would have with respect to either the residents propensity to commit these type of acts or the employees background.
So I guess. It almost wouldn’t matter in those jurisdictions that they have notice or no notice that if they are doing something, if the employee is doing something, then they’re liable through vicarious liability. It doesn’t matter if they don’t have notice of it. That’s interesting.
Okay. Now walk me through then if the, if it’s a resident that has, that is the perpetrator what are you looking at in terms of I’m assuming that you get in their litigation, you would get their records. They’re gonna, their nursing home is gonna argue that we had no idea. So what are you looking at when the perpetrator is the is the, is a resident and you’re wanting to establish that the nursing home should have been on notice that this could have happened?
Hadler:
Yeah. I think those become. More difficult because as you mentioned, you do need to find notice. There are typically two times that I’ve seen this happen that two common circumstances, I should say. And the 1st is that you have a very newly admitted resident who should have been under a 72 hour watch or, some period of time where they are under close supervision until the staff learns.
What’s their baseline? How do we need to care plan this person? So if you have someone newly admitted who comes in and assaults right away, you may not have noticed that they were going to do that. But then you can fall back on the federal regulations, state regulations and standard of care. That, within those 72 hours, you should be closely monitoring to find out what you’re dealing with.
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And then the second circumstance is you have someone who’s been admitted for a period of time and then an assault occurs. And in those circumstances, typically, even if the nursing home won’t have an assault, evidence or notice that the person has assaulted someone previously, they will have some knowledge that, this person has other types of acting out or other behaviors that should cause them to be closely supervised.
There are Other medical conditions that this person probably has or other behaviors that the staff would have noticed that will cause them to need to supervise that resident closely. And I would say you also need to look closely at the needs of the resident who was sexually assaulted.
Because those people are typically vulnerable, and there is a reason that the perpetrator has chosen them to assault. Because of those vulnerabilities, they probably required a heightened level of supervision as well. So you could look there to see if there were any failures in regard to the failure to meet a care plan need of the resident who was sexually assaulted.
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Are sexual assault cases different than other types of nursing home cases?
Schenk:
It sounds to me that. The typical sexual assault case in a nursing home is extremely document. What’s the word I’m looking for? It’s like you, you need a lot more documents, right? As you mentioned at the top of the show that you’re going to, you’re going to send open records requests. You’re going to send FOIA requests.
You’re going to try to get the police the investigation from the police and all this kind of stuff. Which itself can be difficult sometimes. I know it sometimes takes me a long time for open records requests in Georgia. But tell me what are some of the other characteristics that would make, that make a sexual assault case different than your average nursing home case or more difficult?
Hadler:
Gosh, there are Tremendous difficulties with sexual assault cases inside and outside of nursing homes. Depending again on, on the law in the state you are in you, you may run into exclusions and insurance policies. Now here in Indiana, we’re able to avoid that somewhat because of the way our state medical malpractice act is structured.
But I know in other states, if you’re dealing with a typical insurance policy, You might have some exclusions there that you’re battling. So that’s something to be aware of. And like you said, it is incredibly document intense. And I think one, one issue that we may run into frequently is that evidence has not been preserved.
And Sometimes, the failure to send the resident out to receive a sexual assault nurse examination or any other evidence collection, collecting clothes, collecting bedding, collecting photographs and statements, interviews with witnesses. Those things are frequently, in my experience, avoided by the nursing home.
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And so sometimes my burden of proof becomes a little more difficult on the straightforward allegations that you and I have discussed throughout the show. But I think you also then can start to look at the requirements to send someone out right away and the requirements for preserving. That evidence and if it becomes clear that the nursing home intentionally failed to do that then I think exfoliation and getting the inference for the evidence being bad for the nursing home in a civil case.
I think that comes into play. So I think there are ways. to address it. But certainly, my practice is to go out as soon as I can and obtain and make sure we’re preserving any evidence and any statements and making sure the family knows was adult protective services called was the Local police called where the it was the state department of health called making sure that those steps have been taken.
And so the third party agencies can go in. and start getting this evidence because it is the easiest way to obtain it. And often I learn about evidence that exists from those agencies that I can then request directly from the nursing home and discovery.
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What makes nursing home sex assault cases difficult?
Schenk:
It almost seems like the nursing home in these situations is incentivized not to create documents, not to send the victim out because of what you just mentioned, like it makes your job, it makes the investigator’s job that much more difficult.
And at least in my experience, and as you mentioned a couple of times, that’s why it’s so important. that there’s corroborating investigations going on that, and I keep saying Department of Community Health, it does whatever agency in your state investigates nursing homes and the police, because at least in my experience, you’re not going to find much in the record, in the chart.
So that’s, it’s critical that you’ve got third parties. Documents. And you’re right to the extent that there are documents created by the nursing home that they didn’t get rid of. In most states, I know it’s the case in Georgia that if they’re on notice that something has happened and they get rid of a document, then that’s going to allow the victim in trial to allow the jury or the jury will be instructed that they can make a negative inference from that.
In your experience are you dealing more with resident on resident? incidents or employee or caregiver on resident incidents? Anecdotally, I know that you’re not, a scientist on this, but what’s been your experience?
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Hadler:
Looking strictly at the nursing home setting, if I’m limiting it to that, it is frequently employees and caregivers.
The vast majority of resident on resident sexual assault that I see is in inpatient psychiatric hospitals, other residential settings that are not necessarily a nursing home. But I think in my experience, it is typically an employee of the nursing home who is the perpetrator. Okay. And from the literature that I’m aware of and the experts that I’ve worked with, that seems to be the common theme, that it’s more typically an employee or a vendor or some third party and not another resident.
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Schenk:
With that in mind, and based on your experience, what is some advice that you would give to family members of nursing home residents to be wary of this.
Hadler:
I think that is such a difficult question. And I know I’m sure you have the same experience that When clients come to me and I’m speaking to these families, these are families who are incredibly involved, their families who been visiting, who know what’s going on, who have phone calls with their loved one regularly.
And it still happens. Some of my most dear clients have. Met, met the perpetrator, recalled the perpetrator coming in and out of the room, bringing coffee, bringing desserts. And gave the person the benefit of the doubt because that’s what we want to do. So I think, there, there’s nothing in that regard, we should be able to trust that the nursing home has performed the proper background checks and is supervising their employees.
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But I think, Doing all of those things, being involved, being there, speaking to other families I think it’s helpful to speak to other families, see what they’re observing and getting involved in comparing notes in that way is useful. But the biggest thing would be if there are behavioral changes, if a person is typically very warm and affectionate and they withdraw, or if the person typically.
Has good hygiene, likes to shower, likes to get dressed, likes to, get out and go to the activities at the facility, and now they don’t want to. Or, the other direction, if the person is typically not affectionate and becomes overly affectionate or has sexualized behaviors. If anything changes, I would not discount that as something that is a deterioration of a mental condition or something associated with aging or cognitive impairment.
I think then I would look into it and I would always encourage families to to have their antennas up if something like that occurs.
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Schenk:
Said, Ashley, thank you so much for coming on the show and sharing your knowledge with us today.
Hadler:
It was a pleasure.
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