Lloyd Rusk had Alzheimer's Disease. Increasing memory loss, confusion and agitation made home care prohibitive and in 1992, he was admitted to The Brethren Healthcare Center (BCH) in Indiana for custodial care.
At BHC he was noted to be belligerent and combative to both staff and patients. He was known to strike out at people in his vicinity.
Carol Creasy was a certified nursing assistant at BHC who routinely cared for Alzheimer patients. She had no special training for this except for a short BHC presentation concerning the pathological effects of the illness. She had been bruised or several occasions by Alzheimer patients and was aware that Rush presented this sort of risk to her.
In May 1995, Rusk was having a very combative and agitated evening. Creasy attempted to put him to bed with the help of another assistant. Rusk wildly hit and kicked at Creasy causing injury to her knee, hip and back.
Creasy filed a civil suit against Rusk seeking monetary damages for her injuries. Rusk's attorneys responded that Rusk's diagnosis rendered him incapable of appreciating the consequences of his actions so the action against him must be dismissed as a matter of law. They also asserted that given her role at BHC, it was clear that Greasy assumed the risk that led to her injuries.
The trial court agreed and dismissed Creasy's case against Rusk. This was a summary judgment based on Rusk's diagnosis per se without hearing facts as to Rusk's specific level of functioning and impairment. Creasy appealed.
Holding: The Indiana Appeals Court found that without an opinion by a person qualified as an expert the extent of Rusk's dementia resulting from his illness and its effect on his ability to control his actions or understand their consequences were issues of fact precluding summary judgment. A factual hearing was necessary as well, to ascertain whether Creasy's "assumption of risk" made her equally or more at fault than Rusk. The Court stressed the inherent challenge of distinguishing between those individuals who suffer a mental incapacity to such a degree that liability for their actions cannot be imposed and those individuals who suffer from a less severe emotional imbalance who must be held accountable for their actions.
In drawing from law in other states regarding similar actions against institutionalized patients, the Court placed emphasis on public policy concerns that must be weighed. It was stressed that imposing liability on institutionalized mentally disabled patients will encourage prospective caregivers to seek and accept positions in facilities such as BHC because they know their injuries will not go uncompensated.
Public policy cannot be served however, by imposing liability on patients who are unable to control their actions. These matters. therefore, must be scrutinized on a case by case basis.
Accordingly, in this action, the lower court's decision was reversed and a factual hearing ordered.
 | Giovanni Caracci, M.D. Director of Residency Training at Cabrini Medical Center Cabrini Medical Center |
Dr. Caracci comments: The patient suffered from Alzheimer's disease, which leads to marked impairment of mental capacity as well as inability to anticipate consequences to one's behavior Although the behavioral manifestations are more common in the advanced stages of the disease, they can also be present in the early stages with personality changes, delusional perception and belligerent behavior.
In most nursing homes the majority of Alzheimer patients are under psychiatric care and sometimes, due to the severity of their agitation, they require hospitalization.
This case is typical of situations occurring in nursing homes. Very often patients with Alzheimer become agitated and violent around caretime, as in this case, when the aide was putting the patient to bed. During nursing home training workers are instructed about agitation and potential for violence in the patients. By and large, once the problem of caretime agitation is identified a plan is put into place. The plan includes pharmacological intervention and a variety of behavioral modification techniques. Training is the key and lack of training may have been the precipitant in Creasy. Alzheimer patients require very specific kinds of intervention.
Here are some reasonable medical guidelines that could be used to arrive at a decision regarding a patient's impairment and subsequent degree of liability.
1. Make a diagnosis as soon as possible. That means a psychiatric consultation (unlike in this case). Is the patient delirious (a medical cause), psychotic (treatable), does he have dementias (irreversible), is he free of mental disorders, is there a disturbance of his personality (which he can control)?
2. Determine whether there is an organic basis to the diagnosis that is directly related to the destruction of brain tissue.
3. Determine and record lack of impulse control, verbal and physical abuse and whether there is a pattern.
4. Determine the staging of the illness, whether it is progressive, and the degree of impairment of mental capacity.
5. Determine whether the patient is faking mental illness.
6: Determine the patient's personality traits which might explain behavior (i.e. sense of entitlement manipulativeness, lying, stealing, antisocial behavior).
From a psychiatric viewpoint Creasy is an open and shut case. Other cases with less clear psychopathology may need more clinical assessment and more sensitive legal deliberation.
Professor Susan Daicoff comments: The most fascinating part of the Indiana appellate court's opinion deals with the reasons for imposing liability. Will imposing patient liability encourage people to seek and accept employment as caregivers in institutions resting assured that they will be compensated for any injuries they might receive? This raises the burning question of why Ms. Creasy didn't seek workers' compensation system rather than sue Mr. Rusk. Workers' Compensation is designed specifically to compensate employees for injuries suffered while on the job, thus avoiding the need for lawsuits of this nature. Civil liability in this case would be appropriate if there were a failure of the workers' compensation system to adequately compensate Ms. Creasy.
This case can also be viewed through the lens of therapeutic jurisprudence. This relatively new discipline analyzes whether law and laws are psychologically therapeutic or detrimental to the individuals they affect. Its application is not limited to cases involving mentally disabled individuals. It is however, particularly relevant in such cases.
Could imposing tort liability ever be therapeutic for Mr. Rusk? The court in this case does note that institutionalized mentally disabled people cannot obtain liability insurance to protect themselves against the risk of being sued for damages. It is also worth noting that the pain of a monetary judgment against Mr. Rusk is likely to fall on his wife, who is more an "innocent party" than either Ms. Greasy or Mr. Rusk.
PSYCHIATRIC GUIDELINES TO LIABILITY OF PATIENT
- Make a diagnosis as soon as possible.
- Is the patients condition caused by loss of brain tissue?
- Does the patient have a history of poor impulse control, verbal or physical abuse?
- What is the stage of the illness? What is its progression?
- How impaired is his mental capacity?
- Is the patient faking illness?
- What personality qualities, as opposed to brain disease, might explain the behavior?
If Mr. Rusk's mental condition is only expected to worsen, then imposing liability in the hope that his behavior will improve is unrealistic. If, however, he does understand the consequences of his actions, then he will understand the sting of a judgment against him, and modify his assaultive behavior accordingly.
Therapeutic jurisprudence would also ask whether the decision is therapeutic for Ms. Creasy. It may well be antitherapeutic to allow someone to benefit from an incident for which she was partially responsible. Like many areas of tort law, this tends to encourage a lack of personal responsibility and a tendency towards blaming others for events, instead of encouraging better staff training.
