Nursing Home Facilities Held Responsible for Illinois Resident-on-Resident Assaults

Potential clients often report attacks on nursing home residents by roommates or other residents at Illinois nursing homes. Nursing homes typically are home to the elderly, the infirm, the mentally challenged and many who are suffering dementia or other lapses in mental capacity.

In many cases, resident-on-resident violence occurs in Illinois nursing homes on a regular basis. All too often, nursing home residents suffer serious injuries. Nursing home residents are usually fragile physically and emotionally; thus, a fall, a shove, a strike or a blow to the body may cause serious injuries of all sorts that could lead to untimely deaths.

When a nursing home resident applies for residency, there is an assessment that takes place unique to the applying individual. When screening a prospective nursing home resident, the nursing home administrators examine medical reports, consult with treating physicians and interview family members as well as the prospective resident. This due diligence is a way of identifying potentially violent tendencies of a nursing home resident.

When the attacking nursing home resident suffers from any number of cognitive deficits, the legal capacity to bring a lawsuit against that person for an assault and injury to another resident may fail. There would be no mental capacity and probably no assets to pay for injuries to another resident for injuries. On the other hand, if a resident is injured by a fellow resident known to have violent tendencies, a nursing home may be liable for choosing not to provide a safe living place for the injured resident and to prevent such abuse and injury caused by another resident.

Under federal law, when the assailant is one who lacks cognitive abilities without willful intent, federal regulations call the assault an “accident,” from which nursing homes are required to protect their residents. A lawsuit may be brought claiming that the facility allowed an assault or abuse to take place that should have been prevented. In any case, it is the nursing home facility’s responsibilities to its residents to protect them from risk of injury from fellow residents and from employees who commit assaults.

In these cases of resident-on-resident assault and injury, lawyers at Kreisman Law Offices, who represent residents injured in these settings, will obtain the medical records of the assailant. This can be done under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) guidelines. There is a mechanism for obtaining the assailant’s medical records after the lawsuit is filed by obtaining a court order directing the defendant facility to release the assailant’s medical/nursing home records through an order or a stipulation with specific requirements and with certain limitations. Usually a qualified protective order would be the standard order. The defendant assailant would resist turning over his or her medical records based on HIPPA laws.

The case that most represents the ability to produce protected health information is the case of United States v. Jong Hi Bek, No. 05-4198 (U.S. Court of Appeals, 7^th Cir., 2007). In the Bek case, the appeal to the Seventh Circuit Court of Appeals in Chicago primarily dealt with the sufficiency of evidence to support criminal convictions. One of the Bek arguments on appeal was that the district court was wrong for admitting patient medical information and records because they were protected by both a doctor-patient privilege and a privacy interest created under HIPAA.

The Seventh Circuit Court of Appeals held that Bek could not establish that the medical records were subject to any privilege of confidentiality. The court held that evidentiary privileges that are applicable to federal-question suits are given not by state law but by federal law, Fed. R. Evid. 501, which does not recognize a physician-patient (or hospital-patient) privilege.

The appellate court also stated that the condition for producing these patient records was that they be subject to a protective order that (1) prohibited the parties from disclosing the records outside the confines of the litigation, and (2) required that the records be returned to the covered entity or destroyed at the end of litigation.

In cases of resident-on-resident nursing home lawsuits, the facility could be liable for negligence by its admission or retention of a resident who puts the safety of other residents at risk. Another theory would be that the nursing home chose not to provide sufficient staff to supervise residents with dangerous proclivities.

As you might expect, the defendant nursing home will likely focus its defense on claiming that it had no knowledge of the risk to predict or prevent resident-on-resident assaults.

Kreisman Law Offices has been handling nursing home negligence lawsuits, nursing home abuse cases, nursing home bedsore injuries, and nursing home death lawsuits for individuals, families and the loved ones who have been injured, harmed or killed by the negligence of a medical provider in a nursing home for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Antioch, Barrington, Calumet Park, Deerfield, Elmhurst, Frankfort, Gurnee, Homewood, Itasca, Joliet, Kenilworth, Lake Zurich, Mount Prospect, Naperville, Orland Park, Chicago (Morgan Park, Jackson Park, Washington Park, Irving Park, Jefferson Park, Englewood, Wrigleyville, DePaul University Area, Old Town Triangle), Palos Heights, Long Grove and Schaumburg, Ill.