Nursing Home Resident is Sexually Assaulted

This case takes place in Tennessee and involves sexual assault of a nursing home resident by another resident. The plaintiff was suffering from a host of mental issues and had been declared partially incapacitated by reason of mental incapacity. There has been a few occasions where a male resident in the assisted living facility had sexual encounters with the patient. A nurse employee reported the assaults to the senior living administration, but they told her they believed the sex to be consensual and instructed her not to report the incidents to the plaintiff’s guardian. The plaintiff alleges that the sex was non-consensual, since she lacked capacity to consent.

Question(s) For Expert Witness

Expert Witness Response E-008297

Initially I would need to know if they performed a mini mental exam to determine the BIMs score of the resident. This will help determine if, indeed, she was able to consent. I would also want to know why this information would be withheld from a guardian and why a nurse would be instructed not to report. This not only can be seen as negligent but abuse, which is a reportable incident. If determined nonconsensual, then the facility failed to ensure a safe environment. I have not been an expert witness in a sexual incident, however, if she is determined mentally disabled then clearly this goes beyond just negligence. If she is mentally capable of consenting, then the facility also has an obligation to include this in her plan of care and also the makes plan of care.

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