Kim v. Lakeside – Liability When Mandatory Reporters Fail to Flag Abuse

In general, private persons have no duty to report evidence of a crime against an elderly adult by their caretaker. There are strong moral reasons, of course, but that is not the same thing as a legal duty. However, there are certain situations in which persons do have a duty to report the abuse, neglect or exploitation of a disabled adult or caretaker. phone

N.C. Gen. Stat. § 108A is the Protection of the Abused, Neglected or Exploited Disabled Adult Act. Per section 108A-102, any person with reasonable cause to believe a disabled adult is in need of protective services must report that information to the facility director. Upon finding evidence of nursing home abuse, neglect or exploitation of a disabled adult or elderly person, the director must notify the district attorney. Physicians are the one profession bound by law under this statute. Other professions impose internal sanctions for failure to report. For example, the North Carolina Board of Nursing mandates nurses report other nurses for fraud, theft, sexual misconduct, inappropriate prescribing, criminal actions and more.

These professionals may face internal sanctions for failure to report. But what about civil liability? A failure to report abuse, neglect or exploitation of an elder adult resulting in injury or death to the patient may be grounds to impose civil liability. Take for example the recent case of Kim v. Lakeside Adult Family Home. This was a case out of Washington state, but nonetheless has parallels for us here in North Carolina.

According to court records in this nursing home abuse lawsuit, the victim died of acute morphine intoxication while she was a patient at the aforementioned nursing home. It’s awful enough that the woman was given too much morphine, but even worse that she wasn’t even prescribed to receive morphine.

From there, a number of systemic problems came to light.

The medical examiner in that region ruled the death was a homicide, and noted the visible bruising on her head and neck. The primary suspect was one of her caregivers, a staffer at the nursing home.

Meanwhile, the nursing home contracted with another agency to provide nursing services to some of its patients. Decedent was not among those receiving care by this third-party agency. However, two days before her death, an LPN working with this third-party agency visited another patient with a room nearby. While there, she heard a “thump” and walked over to see the decedent (then still alive) on the ground. The LPN suggested to the caregiver she may want to call 911 emergency services. However, the caregiver told her “she falls all the time,” and promised she would call the director. It’s not clear whether that call was actually made, though the LPN said she the caregiver was on the phone when she left.

Two days after, an RN arrived at the facility to care for another patient when that other patient told her the caregiver was injecting decedent with morphine. The RN then watched as the caregiver dragged the “heavily sedated” patient into the bathroom. The RN then glanced at patient’s chart and learned she was not prescribed morphine.

Soon after leaving the facility, she called the state abuse hotline, but it was busy. She called 1.5 hours later and left a message. Later that day, the patient died.

When that came to light, the LPN told her supervisor what she’d observed and she was instructed to report it to the state, which she did.

Plaintiff, representative of decedent’s estate, filed a lawsuit against the third-party agency and those two nurses, alleging failure to report. However, the trial court granted summary judgment to defendants, finding there could be no civil cause of action for failure to report.

The Washington Supreme Court reversed. The court noted that state law expressly exempts permissive reporters from civil liability for failure to report, but the legislature was silent about mandated reporters, which means it is implicit that there may be a cause of action against mandated reporters who fail to report.

Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

Kim v. Lakeside Adult Family Home, May 12, 2016, Washington Supreme Court

More Blog Entries:

Navo v. Bingham Memorial Hospital – Medical Malpractice Lawsuit, May 1, 2016, Charlotte Nursing Home Abuse and Neglect Lawyer

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