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The news media seems to be reporting on all kinds of cases of wrongful death, serious injuries, and sexual abuse at nursing facilities. Seniors at nursing homes are so vulnerable to malpractice and poor medical care in the first place. Most states have specific statutes covering medical malpractice and actually define what is “medical care” for example.

In a recent case in Virginia, the Va. Supreme Court ruled that when a nursing home patient was sexually assaulted, by an unknown assailant, that this assault did not constitute any delivery of “medical care” and therefore did not come under the Virginia medical malpractice act. There was no evidence at the trial showing the assault was or was not committed by staff of the nursing home versus a trespasser to the facility, although clearly the assault did not occur during any prescribed medical care.

At the trial, the patient’s lawyers argued that the claims arose from the defendant’s failure to protect the patient from physical harm and were unrelated to her medical care. In response, the nursing home asserted that all torts committed by health care providers on their premises are covered by the Medical Malpractice Act.

Ultimately, the court ruled that the allegations did not involve a tort committed during the course of a medical procedure or treatment administered on a patient’s behalf during the course of patient care. The Supreme Court concluded that the alleged omissions did not involve the provision of health care or professional services as contemplated by the Medical Malpractice Act. The Supreme Court noted that the definitions of “malpractice” and “health care” apply to patients on an individual basis, rather than to the staffing and security of any medical facility in which the patients are located. Because the alleged omissions involved administrative, personnel, and security decisions related to the operation of the nursing home facility, rather than to the care of any particular patient, the Supreme Court determined that the Medical Malpractice Act did not apply.

This is important to injured victims in many positive ways. The legal rules applying to proving simple negligence leading to a criminal or sexual assault do not directly involve any medical standard of care, or any standard of medical care for a nursing facility. Rather, the legal tests for a secure facility involve reasonable care and defining what is careless without regard to medical care itself. The Va. Supreme Court case is Alcoy, Jr., Administrator of the Estate of Delfina G. Alcoy, Deceased v. Valley Nursing Homes, Inc.

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