David S. Barmak Health Care Law Blog on Lawyers.com

Lawsuits Settle to Avoid Legal Fees and Possible Punitive Damages

Even if There are no Pain and Suffering Damages or Medical Expenses.

A female resident is 83 years old. She suffers from organic
brain syndrome and dementia with impairment in her cognition and
judgment.  She resides in my client's nursing home on a locked unit and is
able to walk independently.  She often wanders into other residents’
rooms.  At approximately 3:05 in the afternoon, she wanders into a room
inhabited by two male residents well known to be sexual predators. They were
supposed to receive constant 1:1 supervision. At that time on that particular
day the two male residents were left unattended. An aide left her shift at 3
instead of waiting for her replacement aide who had stopped for donuts. 15
minutes later, the aide who had stopped for donuts walked into the room and
found one of the male residents with his pants down and lying on top of the
female resident. The female resident’s diaper was unfastened on one side. 
The other male resident was standing by the bed and adjusting his underwear. The
female resident was immediately sent to the hospital for a rape assessment
which proved inconclusive. The female resident could not remember a thing and
did not express any upset over the incident.

The nursing home social worker sent the two male residents
to a hospital outreach program for behavioral evaluation and assessment. On the
“outreach request” form she wrote:  “Reason for referral:  sexually
aggressive with other residents, attempted sexual assault on another
resident."

The problem with the outreach request form was that the
statements were conclusory. The statements might have been true but instead of
writing “attempted sexual assault” she should have given just the facts which
were:  “Resident found on top of another resident.”  “Attempted sexual
assault” implies intention and was unfortunately very supportive during a trial
that I was involved with, of a lawyer’s effort to enflame the jury and persuade
the insurance carrier to settle the lawsuit. 

Now what are the damages? New Jersey law requires that there be some
damage to recover. In this case, the resident did not express any memory or
upset and the hospital didn’t find any evidence of sexual assault.

The documentation by the social worker, the horrific image
conjured up by a wandering resident being accosted by two sexual predators
without the protection or intervention of an assigned aide because of a mere
donut run was enough to require settling this lawsuit to avoid the possibility
of  paying the resident's legal fees and punitive damages.

My point with this story is that lawsuits settle to
avoid possibly paying resident's legal fees  and to avoid possible
punitive damages even if there are no pain and suffering damages or medical
expenses

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