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Sometimes it’s What You Don’t Do

By Heather Brown
October 14, 2014

Many times in life, we look back on past decisions and focus too much on what we did and why we did that at the time. What we overlook sometimes is that its not always what we did, but rather what we didn’t do that caused the problem. That brings me to our topic this week and a true story that you need to hear about.

It is alleged that a resident informed his facility staff members that sexual assaults were underway on more than one occasion against the resident’s roommate, yet the facility did nothing to end the assaults, investigate them, or prevent future attacks. They also failed to report the incident to state authorities.

It is alleged that the staff negligently failed to report the April 2007 incidents to anyone and attempted to conceal the predatory behavior and victimization of the resident. The facility failed to take any corrective action, properly document the incident or investigate the nature of the interaction with the resident.

The complainants allege the resident was attacked and sexually abused by three male residents again around May 2007. The attack consisted of nonconsensual violations of the resident. When the resident’s roommate reported this incident to a staff member, it is alleged that the nurse entered the room, instructed him to shower and clean himself off and wash his clothing.

It is further alleged that the facility did not follow standard procedures concerning reporting assaultive behavior, gathering evidence of sexual assault, or seeking medical treatment. Four days after the attack, the facility notified the Police Department.

After the repeated assaults were brought to light, the family learned that the facility had intentionally or recklessly ignored previous reports and actual physical evidence that the resident was being forced to engage in nonconsensual sexual activity. During an interview by the police detective, the resident identified the three men who had assaulted him and stated that the men had threatened to hit him if he reported the abuse.

The resident returned to the facility from the hospital with his guardians, who allegedly discussed the incidents with the supervisor. At that time, the staff member purportedly stated that she was aware of reports of prior attacks on the resident but acknowledged that she did not take the previous reports from the resident and his roommate seriously. The supervisor admitted that the resident had reached out to her and described the other residents as “hurting him.”

Two of the perpetrators were allowed to remain at the facility until they were notified that the resident and his family had retained legal counsel. It is alleged that he continued to have his personal property stolen and that he began to manifest signs of severe emotional distress, including ongoing fear of the perpetrators who remained in proximity to him.

Both the family and the facility agreed to mediation that saved time, money, and aggravation for both parties. The family initially demanded $1,000,000, but through the mediation process both parties came to an agreed settlement of $485,000! As shown by this horrendous case above, MEDIATION, is an effective tool in resolving legal disputes.

If your facility has not started requiring the signing of a Mediation and/or Arbitration Agreement by residents and you want to find out more about how you can save you, your staff and residents a great deal of stress, time and aggravation should a lawsuit erupt, please log into the PCALIC website at www.pcalic.com, enter your user name and password and on the left column click on the Mediation Program. You will find a video that takes you through a mock Mediation, a brochure explaining both of these resolution tools to provide to your residents and a sample agreement. You can also request this material be mailed to you by calling PCALIC at 1-800-673-2558.

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