Employers always need to find the right people for the job, especially when that job is providing care to the elderly or to children. To that end, there are very strict staffing procedures in place that are designed to ensure that only the qualified are allowed to provide direct care to the elderly in nursing homes. For example, federal law requires that those who provide direct care to nursing home patients be licensed to do so, either as a registered nurse (RN), certified nursing assistant (CNA), licensed practical nurse (LPN), or physical therapist. However, even with proper licensing procedures, there are still instances where less qualified employees can slip through the cracks. When this happens and the employee causes injury, the nursing home itself will be liable through either negligent hiring or negligent supervision.
What is Negligent Hiring?
Negligent hiring is a type of legal claim that is made by a customer or a worker who is somehow injured by an employee a company hires. They are most often made when there is something in the employee’s past that could have predicted that they would engage in the behavior in question–for example, a negligent hiring claim could be made against an employee who assaulted a customer when the employee had a criminal conviction for assault on his record. They are very common in industries where an employee has a great degree of control over others or access to others’ property, including nursing home workers, real estate agents, rental apartment personnel, hotel staff, and utility workers.
Legal liability for negligent hiring attaches when the employer either knew or should have known about the employee’s history but did not take the proper steps to consider that history when making hiring decisions. There are several steps that every employer, especially nursing homes, should take to make sure they aren’t hiring a dangerous employee, including:
- Performing a criminal background check
- Checking employment and personal references
- Validating college degrees
- Performing a drug screening
- Performing credit checks
- Checking driving records
Confirming that claims made by the applicant are true–for example, why he left his previous job, why there is a gap in employment on his résumé, etc.
In order to establish a claim for negligent hiring in Florida, the plaintiff must show:
- The employer was required to make an appropriate investigation of the employee and failed to do so,
- An appropriate investigation would have revealed the unsuitability of the employee for the particular duty to be performed or for employment in general, and
- It was unreasonable for the employer to hire the employee in light of the information he knew or should have known.
The key element here is foreseeability–liability for negligent hiring will attach when the specific danger that occurred reasonably could have been foreseen at the time the employee was hired.
What is Negligent Supervision?
Negligent supervision is a similar claim to negligent hiring, except that it involves wrongdoing on the part of the employee that would not have necessarily been foreseeable on the basis of a background check, but that the employer knew or should have known would occur. Additionally, in cases of nursing homes, day care facilities, and any other setting where caregivers are charged with the well-being of others, it can also be shown when the caregiver knows or should have known that an injury would occur to a person in their care but they failed to prevent it.
Liability for negligent supervision attaches when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to investigate, discharge, or reassign the employee. In the context of nursing homes and day care centers where the employees exercise a great degree of control over their charges, negligent supervision can be shown by:
- The existence of a duty on the part of the caregiver to care for the victim,
- The failure of the caregiver to prevent the type of injury that resulted,
- Injury to the victim as a result of the caregiver’s inaction, and
- The type of injury was one that was or should have been foreseeable to the caregiver.
- Types of Injuries that can Result from Negligent Hiring and Supervision
There are several types of injuries that can result from negligent hiring and supervision. Below we’ll take a look at a few examples of each.
A few of examples of injuries in nursing homes that could be caused by negligent hiring include:
- A nursing home hires an employee who has a conviction for assault on his record and then assaults a patient.
- A nursing home hires a registered nurse whose certification was expired at the time of hiring, who then administers the wrong medication to a patient.
- A nursing home hires a physical therapist who is not licensed in the state in which the nursing home sits and who subsequently injures a patient.
- A nursing home hires a registered nurse who graduated from a nursing program whose accreditation is not recognized by the nursing home state’s medical board and who then incorrectly performs CPR on a patient.
A few examples of injuries in nursing homes that could be the result of negligent supervision include:
- The nursing home administrator knows that a particular nurse and patient do not get along with each other, yet assigns that nurse to that patient anyway. The two get into an argument and the nurse slaps the patient.
- The nursing home administrator knows that a particular employee has been pilfering small items from other employees. That employee subsequently steals several hundred dollars from a patient’s room.
- A nursing home employee knows that Patient A has been showing aggressive sexual interest in Patient B, who has repeatedly spurned his advances. Patient A then sexually assaults Patient B.
Contact a Clearwater Nursing Home Abuse Attorney
If you or a loved one have been injured by a nursing home employee, you may be able to make a case for negligent hiring or supervision. Please contact the nursing home injury attorneys at Dolman Law Group for a free consultation by calling 727-451-6900.