Yes, and often on more than one legal theory at once. A nursing home can be directly liable for its own decision to hire, retain, or fail to properly screen the employee who caused the harm, a theory that exists independently of whatever that employee personally did wrong.
How Liability Works When a Nursing Home Employee Abuses a Resident
Quick answer: A nursing home can be liable under two distinct theories: vicarious liability for an employee’s actions taken within the scope of their job, and direct negligent hiring, supervision, or retention liability for the facility’s own decision to hire or keep employing someone it knew or should have known was a risk. California law also requires facilities to run criminal background checks before hiring direct-care staff, and failing to do so, or ignoring red flags, can itself be strong evidence of negligence. When a facility’s conduct rises to recklessness or worse, California’s Elder Abuse Act provides enhanced remedies beyond an ordinary negligence claim.
Two Different Ways a Nursing Home Can Be Liable
Vicarious liability holds an employer responsible for an employee’s negligent or wrongful acts committed within the scope of their job duties. The problem for victims relying on this theory alone is that facilities often argue intentional abuse falls outside the scope of employment entirely, since abusing a resident was never part of the job the employee was hired to do. That’s exactly why a separate, direct claim against the facility matters: negligent hiring, negligent supervision, and negligent retention don’t depend on whether the abuse itself was within the scope of employment. They ask a different question entirely, whether the facility acted reasonably in deciding to hire this person, in supervising them once employed, or in continuing to employ them after warning signs emerged. A facility that skipped a background check, ignored a prior complaint, or kept someone on staff after an earlier incident can be liable for its own negligence even if a court found the abuse itself fell outside that employee’s job duties.
What California Law Requires Before a Facility Can Hire
California’s health facility licensing laws generally require skilled nursing facilities to run criminal background checks, including fingerprint-based clearance through the Department of Justice, before an employee has direct contact with residents. Certain convictions, including violent crimes, abuse or neglect offenses, and crimes involving controlled substances, generally disqualify an applicant from being hired for a caregiving role at all. When a facility hires someone without completing this screening, or hires someone despite a disqualifying record, that failure becomes direct, documentable evidence supporting a negligent hiring claim, evidence that exists independently of anything the resident’s family witnessed or could have known about at the time.
Worried a Facility Never Should Have Hired This Person? We can help you find out. Call DKB Lawyers at (949) 776-2856.
When the Facility's Conduct Was Reckless: Enhanced Remedies Under the Elder Abuse Act
California’s Elder Abuse and Dependent Adult Civil Protection Act provides remedies that go beyond an ordinary negligence claim, but they require more than showing carelessness. A plaintiff generally must prove, by clear and convincing evidence, a standard higher than the typical burden in a civil case, that the defendant acted with recklessness, oppression, fraud, or malice, meaning a deliberate disregard of a high probability of harm rather than simple negligence. Meeting that standard opens the door to remedies an ordinary claim doesn’t offer: mandatory attorney’s fees and costs, and the ability to pursue full pain and suffering damages even if the resident passes away before the case concludes, which normally wouldn’t survive under standard California law. Punitive damages can also become available, though holding the facility itself liable for punitive damages generally requires showing the facility authorized or ratified the misconduct, not merely that an individual employee acted recklessly.
What to Document Before Involving a Lawyer
If abuse is suspected, the immediate priority is the resident’s safety, which sometimes means arranging alternative care while the situation is investigated. Beyond that, documentation matters enormously: photographs of any visible injuries, dates and details of conversations with facility staff, copies of the resident’s care plan and medical records, and notes on any prior complaints or incidents involving the same employee or facility. Facilities often conduct their own internal investigation after a complaint, and while that process can produce useful records, it generally shouldn’t be treated as a substitute for an independent legal evaluation, since the facility’s own investigation is not designed to protect the resident’s or family’s legal interests.
Suspect Abuse or Neglect at a Care Facility? We can help you take the right next steps. Call DKB Lawyers at (949) 776-2856 for a free consultation.
Talk to an Orange County Nursing Home Abuse Lawyer
Cases involving a facility’s hiring and supervision decisions require reviewing personnel records, licensing history, and complaints families rarely have access to on their own. DKB Lawyers helps Orange County families investigate every party responsible when a care facility fails a resident it was trusted to protect.
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