Posts Tagged ‘Gould v. American Family Mutual Insurance Co.’

Indiana Nursing Home Patient Not Liable For CNA’s Injuries

JUNE 19, 2000 VOLUME 7, NUMBER 51

Carol Creasy worked as a certified nursing assistant at Brethren Healthcare Center in Flora, Indiana. She had worked at the facility for almost two years. Among the residents she helped care for was Lloyd Rusk, an Alzheimer’s patient with a tendency to be combative.

Mr. Rusk was first admitted to Brethren in 1992 because he became confused and his wife could no longer care for him. Over the next three years Mr. Rusk developed a reputation among Brethren staff for being difficult to deal with. He was sometimes belligerent with staff and other residents. He occasionally became anxious, confused, depressed, disoriented and agitated. He frequently resisted staff efforts to redirect him when he strayed into private areas in the facility. He was often combative, and had hit staff members when they tried to care for him.

In May, 1995, Ms. Creasy and Linda Davis, a fellow CNA, were trying to put Mr. Rusk and the other residents in their beds. Mr. Rusk had been particularly combative that evening, and so Ms. Davis was holding his wrists to keep him from hitting either of the CNAs. Their efforts to subdue Mr. Rusk were ineffective, and he managed to kick Ms. Creasy several times. In the course of their efforts, Ms. Creasy suffered a serious lower back injury.

Ms. Creasy brought a lawsuit for her injuries. She sued not only Brethren Healthcare, but also Mr. Rusk himself. Lawyers for Mr. Rusk persuaded the trial judge that the lawsuit against him should be dismissed, since he was unable to understand the nature of his behavior.

Ms. Creasy appealed the dismissal to the Indiana Supreme Court. The judges ultimately upheld the dismissal of the lawsuit, though on somewhat different grounds.

The first question to be addressed, said the Justices, was whether any mentally incompetent person could be held liable for injuries arising from their actions. Indiana law had long been settled on that question, with a 1942 case holding that a defendant could not be liable for damages unless he could have knowledge of the danger or peril. But, said the Justices, an incompetent adult should be liable for his actions, in order to encourage his caretakers to supervise him properly and to prevent defendants from feigning incompetence to avoid liability.

Although Mr. Rusk would ordinarily be liable for causing Ms. Creasy’s injuries, the court also noted that there were strong public policy reasons for not imposing liability in this case. Since Ms. Creasy was hired to provide care precisely because of Mr. Rusk’s combativeness, and since she was actually aware of his propensity to be aggressive, she was not allowed to proceed with her lawsuit against Mr. Rusk. The dismissal of her lawsuit against Mr. Rusk was allowed to stand. Creasy v. Rusk, June 14, 2000.

The result in Ms. Creasy’s case is the same as that reported on in an earlier case in Elder Law Issues. In 1996, the Wisconsin Supreme Court reached much the same conclusion in Gould v. American Family Mutual Insurance Co., as described in Elder Law Issues Volume 3, Number 38.

Nursing Home Resident Is Not Liable for Injuries to Nurse

MARCH 18, 1996 VOLUME 3, NUMBER 38

Roland Monicken resided in the St. Croix Health Care Center, a Wisconsin nursing home. Mr. Monicken suffered from dementia, and had a history of combativeness and disorientation. On one occasion, head nurse Sheri Gould found Mr. Monicken in another resident’s room and attempted to return him to his own room. Unfortunately, Mr. Monicken resisted Ms. Gould’s attempts and apparently struck her or pushed her down, injuring her.

Ms. Gould brought an action against Mr. Monicken and his wife. Mr. Monicken’s homeowner’s insurance company defended, arguing that he could not be held liable for his actions because of his dementia.

After the evidence had been presented to the jury, the trial judge instructed jurors to ignore Mr. Monicken’s mental condition in determining whether he should be held liable. The jury subsequently awarded Ms. Gould damages against Mr. Monicken’s insurance company.

The Wisconsin Supreme Court disagreed with the trial judge’s view of the law. The Supreme Court noted the long-standing rule used by the trial court; since at least 1616, most English (and, subsequently, American) courts have agreed that mental disability is no defense to a personal injury action. The reasons for holding disabled individuals liable for their actions include:

  • As between two “innocent” persons (the mentally disabled person and the injured person), it is better to charge damages to the person who caused the injury.
  • If disabled individuals are held liable, family members will exercise more caution to restrain them and monitor their behavior.
  • Permitting defendants in civil actions to, in effect, plead “insanity” would encourage them to feign illness to avoid liability.

Despite three centuries of precedent, the Wisconsin Supreme Court decided that the rationale for imposing liability did not apply to Mr. Monicken. Analyzing the three principles as they applied to Ms. Gould’s injury, the Court noted:

  • Ms. Gould was not the kind of “innocent” victim imagined by previous cases. She worked in a facility devoted to treating disabled individuals, and was well aware of the risks associated with the care, specifically, of Mr. Monicken. Placing the duty of care on Mr. Monicken was, therefore, too great a burden, since his disability was the precise reason for his institutionalization.
  • Mr. Monicken’s family could not be expected to do more to contain his violence. In fact, placement in Ms. Gould’s care was precisely the sort of precautionary measure they should be encouraged to take.
  • While the Court was concerned about malingering defendants, it seems unlikely that Mr. Monicken would be willing to pretend dementia for years in order to avoid civil liability.

As a result, Ms. Gould’s lawsuit against Mr. Monicken was thrown out. Wisconsin’s Supreme Court has carved out a narrow exception to the rules governing liability, but one which could have widespread effect in nursing and similar facilities. Gould v. American Family Mutual Insurance Co., January 30, 1996.

While Arizona has not expressly adopted the new Wisconsin approach to liability in nursing homes, the logic seems compelling. A similar result might well be expected if and when Arizona’s courts are asked to address the question.

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