In its opinion filed on May 12, 2016, the Supreme Court of the State of Washington (“Washington Supreme Court”) held that Washington State’s Abuse of Vulnerable Adults Act (“AVAA”), chapter 7 4.34 RCW, created an implied cause of action against mandated reporters who fail to report abuse, and therefore the trial court erred when it granted summary judgment to a home health agency and two of its nurses even though they were never assigned to provide care to the decedent and never provided the decedent any nursing services at the defendant nursing home.
The decedent had died from acute morphine intoxication at the defendant nursing home, which the state medical examiner ruled was a homicide. The personal representative of the decedent’s estate brought tort claims against several individuals involved in the decedent’s care, including the home health agency and its two nurses who allegedly observed signs of abuse and physical assault of the decedent that should have been reported to the Department of Social and Health Services (“DSHS”) and law enforcement but failed to do so.
Agency Nurse Number One
One of the agency nurses was visiting her patient at the defendant nursing home when she heard a “thump” or a “thud” from an adjacent room and went into that room. The agency nurse saw the decedent lying on the floor and suggested to the decedent’s caregiver that she may want to call 911. The caregiver responded that the decedent “falls a lot” and that she would call the owner of the defendant nursing home. The caregiver placed the decedent back in bed. The agency nurse observed the caregiver on the telephone when she left the facility. The agency nurse neither called DSHS nor 911 at that time.
Agency Nurse Number Two
The next day, the other agency nurse was visiting the same patient at the defendant nursing home when the patient advised her that the decedent’s caregiver had been giving the decedent morphine. The agency nurse observed the caregiver drag or pull the decedent into the bathroom, at which time the decedent was not moving her feet and it appeared that the decedent was either “heavily sedated” or at a “decreased level of consciousness.” The agency nurse looked at the decedent’s medical records and determined that the decedent had not been prescribed morphine. The agency nurse left the defendant nursing home and called DSHS about five minutes later but the line was busy. The agency nurse again called DSHS about one and a half hours later and left a message describing her observations and her patient’s assertion that the decedent was being given morphine.
The Washington Supreme Court Opinion
In order to determine if there was a private cause of action under the AVAA, the Washington Supreme Court stated that it employs a three-part test: first, whether the plaintiff is within the class for whose “especial” benefit the statute was enacted; second, whether legislative intent, explicitly or implicitly, supports creating or denying a remedy; and third, whether implying a remedy is consistent with the underlying purpose of the legislation.
The Washington Supreme Court held that vulnerable adults who are the victims of abuse or neglect are within the class of people for whose “special” benefit the legislature enacted the reporting statute; legislative intent supports creating a private cause of action against mandated reporters who fail to report (the AVAA provides immunity for those who in good faith make a report or testify about alleged abuse or neglect under the chapter, and by specifying that permissive reporters are not liable for failing to report, but remaining silent as to mandated reporters, the legislature implicitly recognized the existence of a cause of action against mandated reporters who fail to report); and, recognizing an implied cause of action is consistent with the purpose of the statute (the purpose of the AVAA is to give DSHS and law enforcement authority to investigate alleged abuse and neglect of vulnerable adults; implying a cause of action for failing to report suspected abuse or neglect is consistent with the legislature’s intent to ensure that DSHS and law enforcement investigate cases of suspected abuse, and are able to provide protective services to abused vulnerable adults).
The Washington Supreme Court held, “The AVAA creates a right to have suspected abuse reported without providing a remedy for a violation of that right. Implying a cause of action for a mandated reporter’s failure to report suspected abuse or neglect is thus appropriate.”
In the case it was deciding, the Washington Supreme Court stated that there are genuine issues of material fact as to whether (1) one of the agency nurses had “reasonable cause to believe” that abuse was occurring and (2) the other agency nurse had “reason to suspect that physical assault had occurred” such that she should have reported directly to law enforcement and DSHS. The Washington Supreme Court stated that there are existing questions of material fact as to whether the agency nurses reasonably believed or suspected that abuse was occurring, such that they had to report to either DSHS or to DSHS and law enforcement, and whether the one agency nurse reported to DSHS immediately. Therefore, summary judgment was improper.
Source Kim, et al. v. Lakeside Adult Family Home, et al., 91536-9.
If you or a loved one suffered injuries (or worse) while a resident of a nursing home or assisted living facility in Washington or in another U.S. state due to neglect, negligence, or abuse, you should promptly contact a local nursing home claim lawyer in your U.S. state who may investigate your nursing home or assisted living claim for you and file a nursing home/assisted living claim on your behalf, if appropriate.
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