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Court Clarifies Duty to Report Elder Abuse

Posted Friday, May 29, 2015 by John S. Palmer

The Abuse of Vulnerable Adults Act requires that suspected abuse or neglect of vulnerable adults be reported to Washington DSHS, and in some cases to the police. Mandatory reporters include police officers, social workers, and health care providers; they must immediately file a report with DSHS when there is reasonable cause to believe that abandonment, abuse, financial exploitation, or neglect of a vulnerable adult has occurred.

With some exceptions they must also report to both DSHS and local law enforcement when there is reason to suspect that physical assault has occurred or there is reasonable cause to believe that an act has caused fear of imminent harm.

In an opinion issued in March in the case of Kim v. Lakeside Adult Family Home, the Court of Appeals affirmed the dismissal of a wrongful death suit filed against two nurses by the estate of a woman who died from a drug overdose, later ruled to be a homicide. The victim lived in an adult family home, and the nurses were employees of an outside service providing care to other residents of the home, but not the victim.

One of the nurses was present in the home tending to her patient when she heard a thud in the next room; she entered and saw the victim lying on the floor with her eyes open and that she was able to move her legs. The victim’s caregiver said she would call the home’s owner and was on the phone when the nurse left.

On the morning of the victim’s death, the second nurse was told by another resident of the home that the victim was being given morphine. While this nurse saw evidence that the victim was drugged, she saw no bruising or injuries. Moreover, she knew the resident who made the claim was on prescribed narcotics herself and had reason to question her credibility. Nonetheless the nurse called DSHS later that morning to report what she saw. Two days later, the two nurses spoke at their home office and first nurse called DSHS to report the fall when she realized it might be the same patient.

The court of appeals found that although both nurses were mandatory reporters, both had fulfilled their obligations under the Act. With respect to the first nurse, the court noted that she did not learn of any possible abuse until learning what the second nurse saw; without more, the court held that “no reasonable person would assume that [the nurse] had an obligation to report her initial observations to DSHS or law enforcement at the time she observed [the victim] fallen by her bed.”

With respect to the second nurse, who reported what she saw to DSHS, the estate claimed that she also had a duty to call law enforcement, but the court of appeals disagreed, saying:

The basis of the abuse was asserted by another patient—a patient who was under narcotics and whose reliability was questioned by both her caregivers. While the suspicions espoused by the other patient may have raised a concern, that concern was passed to DSHS when [the nurse] made her call…there simply was not enough evidence of a physical assault to “mandate” [the nurse] calling law enforcement in these circumstances.

Finally, the court found that neither nurse owed a duty to the decedent under the “voluntary rescue doctrine”, which states that a person owes a duty to someone he or she knows is in need if (1) the actor voluntarily promises to aid the person in need and (2) the person in need reasonably relies on this promise. The estate argued that a resident of the home (the same one who told the second nurse the victim was being given morphine, and the nurse found to be unreliable) took no action because she relied on both nurses to act. The court said the evidence showed this resident privately assumed the nurses would do something, not that they induced her to take no action by promising to act themselves.

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Law Office of John S. Palmer11911 NE 1st St, Ste. B204,Bellevue, WA 98005-3056