Ask the Legal Expert about ... liability for subcontractors

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John Durso, Esq.  Nixon Peabody LLP
John Durso, Esq. Nixon Peabody LLP

One of our subcontractors did not follow our falls protocol. The person directed our staff to “let her rest and she will be OK.” The resident was severely injured and her condition was made worse by the delay of treatment and bad medication advice. We received a large fine. Can we seek restitution from the company who sent us a “lemon” employee whom we were told was “qualified” but did not act that way?

As with all arrangements based on contracts, you must first review the written terms of the agreement to determine the responsibility the company undertook or promises made to you.

Under the contract, if the company certified the employee sent was qualified to perform certain tasks because of educational background or work experiences, yet the employee sent was not qualified, and that breach caused the facility to be fined, then you would be able to sue the company for breach of contract and the damages would be measured by the fine amount.

You should make sure such contracts clearly set forth the obligations of the parties so liability may be imposed for breach of those obligations. You also should make sure the contract does not have a term that limits the obligations of the breaching party to a set amount of damages below the actual amount of damages caused by the breach.

Additionally, you should make sure the contract does not require arbitration of disputes.

Litigation is a costly and time consuming process with uncertain outcomes. The general rule is that the parties pay their own lawyers and court costs. However, parties to a contract can modify the general rule by having the losing party pay reasonable attorney fees and court costs to the prevailing party.

Ask The Legal Expert Attorney John Durso, Esq. LeadingAge Legal Committee member since 1980 Please send your legal questions to John Durso at ltcnews@mcknights.com.