Protecting yourself against legal liability for in-house crime.

There are many lines of legal attack against nursing homes, from residents and families to employees themselves

A resident's wedding ring is reported missing. Or a visitor's car is stolen from the parking lot. Is the nursing home liable? Reducing the incidence of criminal acts on nursing home property is the best way to avoid finding out. Even the most conscientious nursing home owner or administrator, though, can't prevent all wrongdoing. Laws vary from state to state, but as long as there are people who will violate the rights of others, the nursing home proprietor, like owners of other residential and commercial properties, has a legal obligation to provide reasonable security for its occupants. That obligation extends to the public, as well. By virtue of taking in elderly family members, the nursing home is extending an invitation to the public to visit, and has a duty to provide reasonable security for its invitees.

What is considered "reasonable" is a function of the nursing home's community environment. For example, a nursing home in the inner city, or in any area with a known propensity for crime, has a much higher duty of care than would a rural facility. What is "reasonable" is also tempered by the fact that some things simply can't be prevented.

In general, liability cases involving theft or personal injury in the nursing home ultimately hinge on prior knowledge of a potential security problem. As soon as you become aware of such, your duty to increase security accordingly is increased. By the same token, when informed of a security situation, failure to take steps to rectify the problem will increase your liability.

If an intruder attacks a visitor in the building or steals a car from the parking lot, liability with respect to breach of specific duty will be difficult to prove if the nursing home has taken all reasonable security measures and had no prior knowledge of a security deficit. If, on the other hand, that same nursing home has experienced prior incidents of violence or car theft, the individual who is subsequently victimized can make out a prima facie case against the facility, alleging that the owners negligently failed to provide security deemed sufficient in fight of that prior knowledge.

Similarly, the nursing home that hires or retains an employee with a known propensity for theft or violence is exposing itself to great liability.

This liability can arise because the duty to provide a safe and secure facility to residents and the public is not limited to protection against external threats.

Equally important is the internal threat of harm or theft caused by employees. Where such harm occurs, the same legal analysis applies to determine whether the nursing home has negligently hired an individual with either a propensity for a history of violence or theft. Given the residents' complete dependence upon the staff of a nursing home, a high standard of care is imposed to ensure that only competent, trustworthy individuals are employed. Careful examination must be made of the individual's prior employment, and references must be checked to ascertain whether a security risk would occur by hiring the prospective employee.

Security Audit

The local police or independent security agencies will often conduct a security audit of the premises, pointing out potential areas of weakness. The nursing home that has such an audit performed and then complies with the recommendations made is in a good position, from a liability standpoint, if anyone later claims that an injury or theft resulted from a lack of security precautions. The audit demonstrates due diligence on the part of the nursing home. These audits are often conducted free of charge, but are well worth any fee that may be required.

When Theft Occurs

When theft does occur, the actions you take will depend upon your level of suspicion: do you have concrete evidence, such as a witness, or are your suspicions based on evidence that is purely circumstantial? Should any questions of a legal nature arise, implementing the safeguards illustrated in the following scenarios will help to demonstrate that the nursing home has taken steps to fulfill its duty to resolve security problems.

Incident: Jewelry belonging to several residents is reported missing over a three-day period. It is clear that the purported thefts are occurring on the night shift, but there is no evidence that points to any one employee in particular.

Response: 1. Send a memo to the entire staff with a description of the missing items and the shift when the suspected thefts are taking place (without singling out any one employee). The memo should include a reminder that stealing is a crime and, because such activity has a detrimental effect on the facility and its employees, all employees should be on guard and report any suspicious activity. The memo should conclude with a strong statement that theft will not be tolerated and that anyone found stealing will be summarily dismissed (after appropriate proceedings).

2. Review work records to determine who might have had the opportunity to commit the thefts.

3. As a general rule, residents and visitors should be cautioned, through appropriate notices, to be wary of possible theft and to report incidents immediately. It may seem that warning residents or family members about a theft problem is an invitation to bring suit if something is stolen. But the decision to warn has a positive aspect. Being mindful of this ever-present threat in our society will heighten sensitivity to the need to protect patient valuables. Moreover, in the worst-case scenario, a resident or family member who witnesses a theft and attempts, impulsively, to intercede could be physically harmed to keep him or her quiet, an act that might have been prevented with an appropriate warning.

Incident: A review of the work records has narrowed the "field of suspects" to two employees. But only one, "Mr. Brown," has been assigned to care for all the residents with missing jewelry on the nights when the thefts occurred. With evidence_albeit circumstantial_suggesting that it is highly likely that Mr. Brown committed the acts, administration is now obliged to more closely scrutinize his activities.

Response: Until the issue is resolved, limit Mr. Brown's responsibilities or consider some sort of reassignment of duties that removes him from the problem area.

However, put Mr. Brown "on notice" in a private meeting with the administrator and/or his supervisor. Inform him of the basis for your suspicions: "You were the only employee assigned to the rooms in question on each night when the thefts occurred. When the evening shift leaves, everything is where it should be, but the items are gone the next morning. It's possible that someone else is taking the jewelry, but it looks suspicious." This kind of word to the wise should help stop the thefts -- unless, of course, Mr. Brown simply doesn't care if he's caught or fired.

Next, take inventory of residents' belongings at the start of each shift. Make employees, including Mr. Brown, aware that this will occur and that staff will be closely monitored. Further, notify staff that if anything is missing, the employee found responsible will be subject to disciplinary actions that lead to dismissal.

Meanwhile, carefully document any activity that could connect Mr. Brown or any other employee to the thefts.

Caution: Firing an employee based on suspicion alone is an invitation for a wrongful dismissal suit. In a union facility, the union's disciplinary procedures must be followed to a "T," and in non-union facilities, policy and procedure guidelines should be followed with equal care. In any potentially litigious situation, there is no such thing as "over-documentation." Every "wrong-doing," no matter how seemingly insignificant, should be recorded in the employee's file as they occur. The volume of paper work and number of administrative hours needed to resolve these problems while protecting the facility from liability will vary according to the nature and severity of the problem. But the protection provided by these safeguards is well worth the effort.

Resident Abuse

In all honesty, many of us have reluctantly come to "accept" petit theft as a fact of life in some hospitals and nursing homes. As visitors and employees, we tend to modify our behavior accordingly, leaving items of monetary or sentimental value at home, keeping purses in locked drawers, and so forth. There is no tolerance level whatsoever, though, for one criminal act: resident abuse. Any administrative headaches involved in preventing such acts are well worth while.

The first line of defense against liability for resident abuse is diligent screening and investigation of all prospective employees. Assuming reasonable investigation has occurred prior to their employment, staff should be made aware of their duty to residents as soon as employment begins. They should be informed upfront that administration will respond to any hint of resident abuse with immediate scrutiny, thorough investigation and the speediest possible termination, when justified.

If a resident is harmed, the same safeguards as employed after a theft should be immediately put into effect. A memo should go out to the entire staff and the suspected abuser removed from resident care and put on notice immediately. Due to the severity of the situation, monitoring should begin expediently of all employees who were in a position to commit the abuse. Meanwhile, intensive investigation of the incident should occur. Once the identity of the abuser has been confirmed, the nursing home must quickly terminate that individual's employment. Needless to say in so serious an action, every action and reaction must be meticulously documented.

Whenever an employee is fired, the nursing home always risks being sued for wrongful discharge. The threat exists whether or not the discharge was meritorious, but the threat must never prevent the nursing home from taking all steps to protect its residents. Any failure in this regard will result in substantial liability if the abuse reoccurs. Since liability is determined by whether a breach of duty occurred, the nursing home's implementation of safeguards, as discussed above, will reduce its likelihood.

Conclusion

There is no foolproof method of ensuring that a nursing home will not someday find itself giving a deposition or defending its actions in a law suit involving its prosecution of in-house crime. But as in anything involving the legal system, preparation is everything -- and may even be preventive.

Raymond T. Mellon, Esq., is a partner with the lawfirm of Zetlin & De Chiara in New York City, and specializes in all aspects of real estate law.