Indiana Nursing Home Patient Not Liable For CNA’s Injuries

JUNE 19, 2000 VOLUME 7, NUMBER 51

Carol Creasy worked as a certified nursing assistant at Brethren Healthcare Center in Flora, Indiana. She had worked at the facility for almost two years. Among the residents she helped care for was Lloyd Rusk, an Alzheimer’s patient with a tendency to be combative.

Mr. Rusk was first admitted to Brethren in 1992 because he became confused and his wife could no longer care for him. Over the next three years Mr. Rusk developed a reputation among Brethren staff for being difficult to deal with. He was sometimes belligerent with staff and other residents. He occasionally became anxious, confused, depressed, disoriented and agitated. He frequently resisted staff efforts to redirect him when he strayed into private areas in the facility. He was often combative, and had hit staff members when they tried to care for him.

In May, 1995, Ms. Creasy and Linda Davis, a fellow CNA, were trying to put Mr. Rusk and the other residents in their beds. Mr. Rusk had been particularly combative that evening, and so Ms. Davis was holding his wrists to keep him from hitting either of the CNAs. Their efforts to subdue Mr. Rusk were ineffective, and he managed to kick Ms. Creasy several times. In the course of their efforts, Ms. Creasy suffered a serious lower back injury.

Ms. Creasy brought a lawsuit for her injuries. She sued not only Brethren Healthcare, but also Mr. Rusk himself. Lawyers for Mr. Rusk persuaded the trial judge that the lawsuit against him should be dismissed, since he was unable to understand the nature of his behavior.

Ms. Creasy appealed the dismissal to the Indiana Supreme Court. The judges ultimately upheld the dismissal of the lawsuit, though on somewhat different grounds.

The first question to be addressed, said the Justices, was whether any mentally incompetent person could be held liable for injuries arising from their actions. Indiana law had long been settled on that question, with a 1942 case holding that a defendant could not be liable for damages unless he could have knowledge of the danger or peril. But, said the Justices, an incompetent adult should be liable for his actions, in order to encourage his caretakers to supervise him properly and to prevent defendants from feigning incompetence to avoid liability.

Although Mr. Rusk would ordinarily be liable for causing Ms. Creasy’s injuries, the court also noted that there were strong public policy reasons for not imposing liability in this case. Since Ms. Creasy was hired to provide care precisely because of Mr. Rusk’s combativeness, and since she was actually aware of his propensity to be aggressive, she was not allowed to proceed with her lawsuit against Mr. Rusk. The dismissal of her lawsuit against Mr. Rusk was allowed to stand. Creasy v. Rusk, June 14, 2000.

The result in Ms. Creasy’s case is the same as that reported on in an earlier case in Elder Law Issues. In 1996, the Wisconsin Supreme Court reached much the same conclusion in Gould v. American Family Mutual Insurance Co., as described in Elder Law Issues Volume 3, Number 38.

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