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In many cases, yes. A nursing home or assisted living facility takes on the job of keeping a resident safe, and it is paid for that job. When a resident is sexually assaulted there, you can usually bring a civil claim for what the facility did or failed to do.
Families place someone in a facility because that person can no longer be kept safe at home. These claims can be stronger than families expect, because the defendant is a business with liability insurance and the duty it owed was specific and paid for. The step that cannot wait is the facility’s records, starting with video, staffing and call light logs. Call 713-521-0059 before those records reach the end of their retention schedule.
The facility and its operator are the first defendants. They are often separate companies. There may also be a separate property owner and a separate management company, and each may carry its own insurance policy.
Where a staff member committed the assault, you can sue the employer for its own negligence. The claims are negligent hiring, negligent supervision and negligent retention. These are claims about what the employer did, not claims that the employer committed the assault. That difference matters, because it is what can put the conduct inside ordinary liability coverage.
A staffing agency can also be a defendant where it placed the person who did it.
The facility can still be responsible. Some residents have a history of unwanted sexual behavior toward others, and a facility that knew about it had choices to make. It could change the resident’s placement, increase supervision or separate that resident from others. A facility that knew and did nothing answers for its own choices, not for the other resident’s.
In most cases, the question is what the facility knew and when it knew it. The records usually answer that question. Your case can draw on personnel files and what the pre-hire background check showed. It can also use prior complaints about the same employee, and what the facility did with each one.
Staffing records for the shift matter, because these incidents often happen on understaffed nights. Call light response logs, prior incident reports involving the same resident, and care plans all count. So does whether the facility followed its own documented plan. State survey and inspection findings are written by regulators and exist apart from the facility’s own files.
Two facts come up again and again in these cases, and both can be proved from records. The facility was short-staffed, and somebody had already complained about this person.
Many residents have dementia, aphasia or another condition that makes a clear account impossible. Families are often told that because the resident cannot say what happened, nothing can be done. That is usually not how these cases work.
These cases are often built from physical findings and medical records. Staff notes about changes in behavior, accounts from a roommate or a visitor, and staffing and access records can fill in what the resident cannot say. The facility’s own documentation is often part of the proof. A resident’s inability to describe the assault does not by itself defeat your claim, because the facility chose to care for people in that condition.
It may. A resident who is the victim of a sexual offense is a crime victim, and the Texas Crime Victims’ Compensation program run by the Attorney General can apply. Within its limits and eligibility rules, it can cover counseling, medical care and relocation costs. It does not require an arrest, a charge or a conviction. Our page on Texas crime victims’ compensation explains how it works.
A civil claim arising from conduct that violates the adult sexual assault provisions carries a five-year period under Section 16.0045(b) of the Civil Practice and Remedies Code. That is longer than the ordinary two years.
Where the resident has died, the deadline depends on the conduct. The ordinary rule under Section 16.003(b) is two years from the date of death. Section 16.0045(c) provides that where the death arises from conduct described in Section 16.0045(a) or (b), the cause of action accrues on the death, so the longer period may apply. Texas limits wrongful death recovery to the surviving spouse, children and parents. Our page on how long you have to sue goes through the deadlines.
Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.
This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.
Surveillance footage in common areas and corridors is commonly kept for thirty days, and sometimes far less. Electronic access logs, call light logs and staffing records for a single shift can also be lost. The employee often resigns within days. A preservation letter sent early can make a real difference in what you are able to prove.
We start with written notice to the facility to keep the video, staffing records and call light logs, because those are the records that go first. Then we identify every responsible party: the facility, its operator and management company, any staffing agency, and the property owner. Schiffer Law Firm represents residents and families in civil claims against nursing homes and assisted living facilities in Houston and across Texas.
Schiffer Law Firm is a Houston personal injury firm with 50 plus years of combined experience representing injured people and survivors across Texas.
If you are an advocate or a counselor asking on someone’s behalf, you are welcome to call with a general question. We will not ask you for their name.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Written by Jacob Schiffer, Attorney, Schiffer Law Firm. State Bar of Texas No. 24105175.
Call 713-521-0059.
In many cases, yes. These cases are usually proved with records, staffing patterns and physical findings rather than testimony alone.
The facility and its management company. Where an employee was the assailant, the employer can also be sued directly for negligent hiring, supervision and retention.
The facility can still be responsible. The claim is about what it knew about that resident and what it did about placement, supervision or separation.
It may. The Texas Crime Victims Compensation program can apply here too, and it does not require an arrest, a charge or a conviction.
A claim arising from conduct that violates the adult sexual assault provisions carries five years under Section 16.0045(b). If the resident died, the ordinary rule is two years from the date of death under Section 16.003(b), and Section 16.0045(c) can extend that where the death arose from the listed conduct. Ask about your dates.
As soon as you can. Staffing records, call light logs and video are on retention schedules, and a preservation letter costs nothing.