§47.16 Duty of Nursing Home to Protect Patients From Criminal Acts of Employee

The Case: Limbaugh v. Coffee Medical Center , 59 S.W.3d 73 (Tenn. 2001).

The Basic Facts: Plaintiff, originally acting as the conservator for his mother, filed suit against Defendant medical center and its employee, a nursing assistant, to recover damages for his mother's injuries when she was assaulted by the nursing assistant.

The Bottom Line:

• "[W]e have held that where a special relationship exists between the defendant and 'a person who is foreseeably at risk from . . . danger,' id. (citing [RESTATEMENT (SECOND) OF TORTS § 315 (1965)]), the defendant is under an affirmative duty to take 'whatever steps are reasonably necessary and available to protect an intended or potential victim.' Turner v. Jordan, 957 S.W.2d 815, 819 (Tenn. 1997) (quoting Naidu v. Laird, 539 A.2d 1064, 1075 (Del. 1988)). An example of this special relationship, and one most analogous to the relationship at issue in this case, is the physician/patient relationship born out of the physician's assumption of responsibility for the care and safety of another. See, e.g., Turner, 957 S.W.2d at 820-21 (holding that a psychotherapist has an affirmative duty to protect a foreseeable third party when the patient presents an unreasonable risk of danger to that party); Bradshaw, 854 S.W.2d at 872 (holding that a physician owes a duty to warn identifiable persons in the patient's family against foreseeable risks related to the patient's illness); Wharton Transport Corp. v. Bridges, 606 S.W.2d 521, 526 (Tenn. 1980) (holding that a physician owed a duty to a third party injured by a truck driver whom the physician had negligently examined and certified). It follows, then, that the relationship between a nursing home and its residents, where a nursing home voluntarily assumes an obligation to ''provide care for those who are unable because of physical or mental impairment to provide care for themselves,'' Niece v. Elmview Group Home, 929 P.2d 420, 424 (Wash. 1997) (alteration in original) (citations omitted), gives rise to an affirmative duty owed by the nursing home to exercise reasonable care to protect its residents from all foreseeable harms 'within the general field of danger which should have been anticipated.' Id. at 427." 59 S.W.3d at 79-80.
• "In this case, the evidence clearly reflects that the risk of harm to Ms. Limbaugh was a foreseeable one. First, several members of the nursing home staff had witnessed, just eighteen days prior to the incident with Ms. Limbaugh, Ms. Ray's physical outburst directed at visitor Jennie Cox. Second, Ms. Limbaugh herself was well known by the nursing staff to physically strike out against her caretakers as a result of her dementia. Consequently, it was certainly foreseeable that this nursing assistant, who had demonstrated her propensity to be physically aggressive even when slightly provoked, presented a risk of harm to a resident also known to be combative. In addition, evidence was presented by Mr. William Moore, the administrator of the nursing home during Ms. Ray's employment, as to the nursing home's standard procedure for dealing with the errant behavior of an employee. He testified that 'if there was any contact between any associate, [who] is an employee of the facility, that is combative in any manner whatsoever, it would be reported directly to the [S]tate within 24 hours, written up, and sent in. That employee would be sent home and placed on leave.' He further testified that he would discharge any employee who had 'physically assaulted, battered, [or] touched' another person, or who otherwise had demonstrated a propensity for violence. We believe that CMC's policy for disciplining a combative employee, although not followed in this case, further demonstrates that physical abuse by staff members previously known to be physically aggressive is a foreseeable danger against which reasonable precautions must be taken." Id. at 80.