Original Publish Date: June 7, 2016
In a recent decision, the Washington Supreme Court added yet another layer of potential civil liability by finding the existence of an implied cause of action against a health care provider whose employees allegedly failed to carry out their mandatory duty to report the suspected abuse of a vulnerable adult.
Like health care providers across the nation, health care providers in Washington State are statutorily required to report instances of suspected “abuse” or “neglect” of a “vulnerable adult.”1 Under Washington State’s Abuse of Vulnerable Adult Act (AVAA), chapter 74.34 RCW, a broad range of persons and entities are “mandated reporters.”2 These persons include employees of hospitals, skilled nursing centers, assisted living facilities, adult family homes, and home health agencies.3 Mandatory reporters are required to immediately report to the Department of Social and Health Services (DSHS) when there is reasonable cause to believe abandonment, abuse, financial exploitation, or neglect of a vulnerable adult has occurred.4 Mandatory reporters are required to immediately report to DSHS and an appropriate law enforcement agency when there is reason to suspect a sexual or physical assault has occurred.5
The AVAA grants immunity to a person making a good faith report of suspected abuse or neglect.6 However, a mandatory reporter who knowingly fails to make a required report can be guilty of a gross misdemeanor.7 Absent from the express terms of the AVAA is any provision imposing civil liability on a mandatory reporter or a mandatory reporter’s employer for negligently failing to make a required report.
On May 12, 2016, the Washington Supreme Court decided Kim v. Lakeside Adult Family Home, et al., --- P.3d ---, 2016 WL 2756026 (May 12, 2016), and addressed whether the mandatory reporting provisions of the AVAA creates an implied private cause of action for negligent failure to report statutory abuse or neglect. In Kim, Ho Im Bae, an elderly resident of Lakeside Adult Family Home, died of acute morphine intoxication. The state medical examiner ruled the death a homicide and an autopsy report revealed visible bruising to Bae’s head and neck. The primary suspect of these injuries was a Lakeside employee, Fanny Irawati.
Alpha was a home health agency that provided nursing services to the residents living within Lakeside. Alpha’s nurses were mandatory reporters under the AVAA. One or two days before Bae’s death, an Alpha nurse was at Lakeside providing care to residents other than Bae. While there, the nurse heard a “thud” from Bae’s room and when she went to investigate she found Bae on the floor. The nurse informed Irawati and suggested that a call to 911 be made. Irawati simply placed Bae back into bed and explained that Bae “falls a lot.” Irawati also said that she would inform Lakeside’s owner who was also a nurse. The Alpha nurse did not call either DSHS or law enforcement at that time.
The next day, another Alpha nurse was at Lakeside giving care to a resident other than Bae. The resident informed the nurse that Irawati had been giving Bae morphine and the nurse observed Irawati drag Bae into a bathroom. The nurse investigated and confirmed that Bae’s records did not contain a prescription for morphine. The nurse left Lakeside and attempted to call DSHS’ abuse “hotline” five minutes after she left. The line was busy. The nurse tried again an hour and half later and left a message describing her observations. The nurse did not call any law enforcement agency at this time.
Bae’s personal representative brought suit against Alpha and its nurses for negligent failure to perform their mandatory reporting functions. The lawsuit alleged that the AVAA created an implied cause of action against mandatory reporters who fail to report suspected abuse. The trial court dismissed this claim on summary judgment. The Washington Supreme Court reversed, holding that the AVAA creates an implied, private cause of action against mandatory reporters who fail to report suspected abuse.
Borrowing from its previous analysis of a similar question under Washington State’s Abuse of Children Act, the Court determined that the AVAA creates an implied cause of action against mandatory reporters who fail to report suspected elder abuse under a three part test:
Kim represents a new layer of risk to heath care providers and their employees in Washington State. Given the prophylactic purpose of statutes like the AVAA, it would not be surprising to see courts in other states recognize similar implied causes of action under similar statutory schemes. The holding in Kim reinforces the strong need for health care employers to provide their employees with ample training on mandatory reporting obligations. Further, health care employers would be wise to adopt substantive procedures to monitor their employees to ensure that employees are promptly reporting any suspected abuse and neglect of vulnerable adults.
Robert King is a member of Ryan Swanson’s Healthcare Practice Group. Reach him at 206.654.2287 or firstname.lastname@example.org.
1“Abuse" means willful or non-accidental action or inaction that harms a vulnerable adult. RCW 74.34.020(1). It includes: sexual abuse, mental abuse, physical abuse and personal exploitation of a vulnerable adult.
“Neglect" means (a) a pattern of conduct or inaction by a person or entity with a duty of care that fails to provide the goods and services that maintain physical or mental health of a vulnerable adult, or that fails to avoid or prevent physical or mental harm or pain to a vulnerable adult; or (b) an act or admission by a person or entity with a duty of care that demonstrates a serious disregard of consequences of such a magnitude as to constitute a clear and present danger to the vulnerable adult’s health, welfare, or safety. RCW 74.34.020(2).
“Vulnerable Adult” includes, among other things, a person: (a) sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself; or (b) admitted to facilities (including nursing homes, assisted living facilities, and adult family homes; or (c) receiving services from an licensed home health, hospice or home care agency. RCW 74.34.020(21).