Facility May Be Liable In Sexual Assault By Unsupervised Aide

APRIL 9, 2001 VOLUME 8, NUMBER 41

Victoria Ann Elder’s last years were tragic. The victim of an automobile accident, Ms. Elder was a quadriplegic and confined to her bed at the Stone County Skilled Nursing Facility in Mountain View, Arkansas. One Saturday evening the helpless woman was sexually assaulted by an aide at the nursing home.

William McConnaughey, an aide at the facility who had begun his employment as a janitor and taken a two-week course to become a nurse’s aide, was assigned to clean and change Ms. Elder. At about 8 p.m. that Saturday another aide observed Mr. McConnaughey molesting Ms. Elder.

The second aide talked to a senior nurse, who told her to “wait to see if it happened again.” She knew that was an inadequate answer, and reported what she had seen to the charge nurse.

The charge nurse, in turn, attempted to contact the facility’s director of nursing and nurse administrator. Neither was available on Saturday night, but the charge nurse made no effort to file a complaint with the authorities.

Monday morning the charge nurse told the nursing home’s management what had happened, and the facility took quick action. After the nurse administrator interviewed witnesses and notified Ms. Elder’s father and physician, she contacted the police.

A lawsuit was filed on Ms. Elder’s behalf sixteen months later, relying on two separate theories. The first claimed “vicarious” liability for Mr. McConnaughey’s actions because they occurred in the course of his employment with the nursing home. The second maintained that the nursing home was liable because it had been negligent in its supervision.

The trial judge dismissed Ms. Elder’s complaint, finding that the nursing home had no reason to expect that Mr. McConnaughey might molest a patient. Ms. Elder’s estate (she died after the lawsuit was begun) appealed.

The Arkansas Court of Appeals agreed with the trial judge on one of the lawsuit’s theories, but sent the matter back for trial on the other. Mr. McConnaughey’s misbehavior was obviously not within the scope of his duties, the judges decided, and there was no reason for the nursing home to expect he might do such a thing. The nursing home was not directly liable for his actions.

On the subject of the home’s supervision of Mr. McConnaughey, on the other hand, the trial judge was wrong. At least one expert witness was prepared to testify that Stone County had a history of failing to supervise aides (based on deficiencies noted in prior facility surveys), and that they permitted male aides unmonitored access to helpless patients. The Court of Appeals ordered a full trial on the negligent supervision claim. Regions Bank & Trust, N.A. v. Stone County Skilled Nursing Facility, Inc., February 28, 2001.

[Note: On July 9, 2001, the Arkansas Supreme Court upheld most of the Court of Appeals’ conclusions. It determined that the lawsuit had actually been brought under three different theories, and ordered that the trial continue on the argument that the nursing home had failed to provide adequate staffing and care. The Supreme Court agreed with the trial judge that the claims against the nursing home for negligent supervision of Mr. McConnaughey should be dismissed, along with the claim that the nursing home was automatically liable for all of its employees’ actions.]

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