It is imperative for employers to identify the right individual for the job, particularly when that job involves providing care to children or the elderly. To achieve that end, there are stringent staffing procedures in place meant to ensure that only the qualified are allowed to offer direct care to elderly residents in nursing homes.
Despite proper licensing procedures, there are still cases where less qualified employees can slip through the cracks. When this occurs, and the employee causes an injury, the nursing home itself will be responsible either via negligent hiring or negligent supervision.
Negligent Hiring: Meaning
Negligent hiring refers to a type of legal claim that is made by a client or worker who is somehow injured by an employee that a company engages. They are typically made when there is something in the employee’s history that could have indicated that they would engage in questionable behavior.
For instance, a negligent hiring claim could be brought against an employee who assaulted a client when the employee had a criminal conviction for assault on their record. Such cases are quite common in industries where an employee has a significant level of control over others or access to other’s assets, including real estate agents, nursing home workers, utility workers, hotel staff, and rental apartment personnel, among others.
The legal liability for negligent hiring is attached when the employer was either aware or should have been aware of the employee’s background but did not take adequate steps to consider that background when making hiring decisions. There are various measures that every employer, particularly nursing homes, should take to ensure that they aren’t hiring a reckless employee, such as:
- Undertaking a criminal background check
- Verifying employment and personal references
- Validating college degrees
- Conducting a drug screening
- Performing credit checks
- Verifying driving records
The employer should also confirm claims made by an applicant, such as why they left their previous employment, why there is a gap in employment on their resume, etc. The plaintiff must show the following to establish a negligent hiring claim:
- The employer should have conducted a suitable investigation of the employee and failed to perform it;
- A thorough investigation would have shown the unsuitability of the employee for the specific duty to be performed or for the employment in general; and
- It was unreasonable for the employer to engage the employee in view of the information they knew or should have known.
Foreseeability is the core element here. The liability for negligent hiring will come into play when the specific hazard that occurred could have reasonably been foreseen when the employee was hired.
Negligent Supervision: Meaning
Negligent supervision is akin to a claim of negligent hiring, except that it involves wrongdoing by the employee that would not have necessarily been foreseeable through a background check, but that the employer was aware or should have been aware that it would occur.
In cases involving daycare facilities, nursing homes, and any other setting where caregivers are charged with the welfare of others, it can be proven when the caregiver knows or should have known that an injury would occur to an individual in their care, but they failed to prevent it from occurring.
Negligent supervision liability attaches when the employer becomes aware or should have become aware of the issues with an employee that indicated their unsuitability, and the employer fails to investigate, terminate, or reassign the employee.
In nursing homes and daycare centers where employees exercise a significant degree of control over their charges, negligent supervision can be proven through:
- The caregiver’s duty to care for the victim exists.
- The caregiver’s failure to prevent the type of injury that occurred.
- Injury to the victim due to inaction on the part of the caregiver.
- The injury was such that it should have been foreseeable to the caregiver.
Types of Injuries that Occur Due to Negligent Hiring and Supervision
Some examples of injuries in nursing homes that could result from negligent hiring include the following:
- A nursing home engages an employee with an assault conviction on his record and then they proceed to assault a patient.
- A nursing home hires a registered nurse whose certification was expired when they were hired, who then administers the wrong drugs to a patient.
Negligent supervision in nursing homes could result in the following injuries:
- The nursing home administrator is aware that a specific nurse and patient don’t get along with one another, yet assigns that nurse to the patient anyways, and the nurse slaps the patient during an argument.
- The nursing home administrator is aware that a particular employee steals small items from other workers, and the employee ends up stealing several thousand dollars from a patient’s room.
Legal Assistance from Compassionate, Caring Attorneys
At Garmo & Garmo, we provide robust legal representation for victims of abuse and negligence. If you or someone you love has experienced inexplicable injuries or illness in a nursing home, we want to help you defend your rights and fight for your interests. Call our La Mesa office today at (619) 441-2500 to speak to an experienced nursing home abuse attorney.