Jeffrey Downey - August 2004
Posted with permission of TRIAL (August 2004)
Copyright the Association of Trial Lawyers of America
As assisted living facilities gain popularity, they are taking on responsibilities that they are not equipped to handle. Attorneys need to step in when regulation fails to protect the elderly.
Assisted living facilities are rapidly becoming the nursing homes of the future. According to the National Academy for State Health Policy, more than 36,000 licensed facilities are operating nationwide. Because there is no common definition for these facilities, however, this number may not adequately reflect their prevalence.
Although most litigation in the long-term-care field over the last 10 years has involved nursing homes, suits against assisted living facilities are mounting. One reason is that these facilities are not regulated by the federal government, and the state regulations that exist are inconsistent and, for the most part, lax in enforcing industry standards.
In an attempt to compete with nursing homes, assisted living facilities are accepting residents with greater medical needs or significant cognitive impairment. Most major chains promote special Alzheimer's disease units, but the reality is that staffing in many of these facilities is inferior to that in nursing homes and simply cannot meet the needs of these residents.
Neglect in assisted living facilities can result in falls, fractures, sexual or physical abuse, pressure sores or other skin breakdown, malnutrition, depression, immobility, and even death. For example, one assisted living facility admitted an elderly alcoholic undergoing detoxification who required close supervision and care. An employee allegedly provided him with a lighter and cigarettes, then left him unsupervised. The resident set himself on fire.
In other cases where supervision was severely lacking, people who tended to wander were admitted into facilities that were not set up to prevent this behavior. Wanderers mostly suffer falls and fractures, but some who have ventured out during winter months have died from hypothermia. One unfortunate resident wandered into the path of a moving train and was killed.
In several cases, assisted living facilities accepted severely ill patients who either had or were at severe risk for developing pressure sores, even though these facilities are not equipped to provide the skilled care-including tube feeding, catheterization, and daily turning and positioning-necessary to prevent or treat them. These residents developed severe pressure sores as a result of improper care.
These scenarios are not uncommon, but a lack of reporting requirements, state investigation, and active litigation has allowed assisted living facilities to continue operating under far less scrutiny than the nursing home industry.
When a facility accepts residents whose needs or acuity levels exceed the staff's skill or training, it opens itself up to legal liability. In most jurisdictions, liability can be determined by the state's admission criteria.
For example, Virginia regulations prohibit assisted-living facilities from admitting or retaining patients who have stage III and IV pressure sores; who are ventilator dependent; who require nasogastric tubes, intravenous therapy, or injections directly into the vein; and who need continuous licensed nursing care. Other states have similar limitations.
These are some common state law criteria that would preclude a person's admission to assisted living facilities:
- is a threat to self or others
- has a contagious or an infectious disease
- requires care beyond the facilities' skill
- requires physical and/or chemical restraints
- requires 24-hour nursing or other care
- is bedridden
- requires specialized long-term care
- has stage III and/or IV pressure sores
- requires more than minimal assistance in moving to a safe area during an emergency
- is less than 18 years old
- requires help with tube feeding
State regulations that set forth specific admission criteria can be used to set the standard of care in your jurisdiction. Even in states that have no criteria, the community-practice standard would dictate that an assisted living facility may not accept a patient whose needs it cannot meet. However, the lack of case precedent and strong regulatory standards poses significant-although not insurmountable-obstacles to successful litigation.
The first step in evaluating your case will be to get the records from the facility, including the signed contract, which should define the duties the facility agreed to undertake.
Most assisted living facilities offer various levels of service. Basic service might include only room, board, and activities. The highest service level might include assessment of physical and mental health, care or service planning (a multidisciplinary process in which various providers come up with a unified plan to address the resident's physical, mental, and psychosocial needs), medication administration, and nursing care (assistance with bathing, feeding, and grooming). These facilities are like nursing homes that do not provide skilled care, and arguably they should be held to the same standard of care.
You will also need to submit a Freedom of Information Act (FOIA) request to identify the corporate entity that owns and operates the facility. The license should always be available from the local regulatory agency in charge of licensing and inspecting the facility; it may include information about the scope of services that the facility is authorized to provide.
In your FOIA request, also seek access to results of surveys and inspections of the facility conducted by the local department of social services. Do not expect these reports to contain the wealth of information typically included in such reports on nursing homes: Often they do not include assessments of whether the facility is complying with regulatory standards.
Once you have obtained these records, have a reliable nursing expert review the case. Because many nurses who work in the assisted living industry are licensed practical nurses, not registered nurses, they may lack the background you need, so you may need to retain an expert from outside the field. If a case involves a relatively simple issue like a fall, you may not need a liability expert.
Working with your expert, consider these factors when deciding whether to accept a case:
- The nature of the resident's condition upon admission. If he or she was mentally competent and living independently, contributory negligence and comparative fault defenses will pose significant hurdles.
- The nature of the contract and duties the facility assumed. If the facility agreed to provide only room and board, the defense will argue that its duties are comparable to those of a landlord in an apartment building.
- The quality of the relationship between the resident and his or her personal representative. If the resident is deceased, this issue may take on a greater importance: The nature of that relationship may determine what damages are available under the applicable wrongful death act.
- Whether the family members make good fact witnesses, appear genuinely outraged by the facility's conduct, and complained and/or removed their loved one from the facility.
Whether the facility had serious staffing shortages or a pattern of neglecting its residents.
- Whether the resident suffered a significant injury in the facility that will adversely affect the quality of his or her life in the future, or that caused his or her death.
- Whether you have strong witnesses and powerful exhibits. Do you have an insider who is willing to blow the whistle on rampant staffing shortages? Do you have color photos of the resident's pressure sores or compound fracture?
- Whether the client has significant economic damages that are not encumbered by a Medicare or Medicaid lien.
- Whether the defendant is a charitable organization, religious affiliate, or part of a large assisted living chain. Charitable organizations tend to be more sympathetic defendants, and some states have statutory limits on their liability.
Attorneys who file claims against assisted living facilities can be creative in developing liability theories. However, don't complicate your case with unnecessary theories, and remember that the scope of discovery may be affected by the ones you advance.
Common law negligence. This is probably the most common liability theory in assisted living cases. Make sure you do not plead breaches in medical or nursing standards of care, or you may face the argument that you have pleaded a traditional medical malpractice case.
Instead, plead the breach of regulatory and/or industry standards that proximately caused your client's injury. Because assisted living facilities are not traditional health care providers, these cases should not be subject to damages caps or discovery limitations such as quality assurance privileges that would apply to medical negligence claims. A quality-assurance or peer-review privilege is typically asserted over any documents created to improve the quality of care in that facility-such documents can include incident reports, meeting minutes, or internal memos addressing any problems.
Violations of the state consumer protection or "adult protection" act. Many states have statutes that allow a private right of action for neglect committed in assisted living facilities. Plaintiffs have advanced consumer protection theories even against health care providers, so there should be no reason why such theories can't be applied against an assisted living facility.
For example, one U.S. district court upheld consumer-protection and fraud-based claims against Manor Care, Inc., an assisted living provider that allegedly persuaded a resident to enter the facility with misrepresentations about staff ratios and training. Ask your client what representations the facility made, and obtain any marketing brochures.
One advantage to filing under state consumer- and adult-protection statutes is that they allow for recovery of costs and attorney fees. While some states specifically exempt health care providers from such statutes, these exemptions should not apply to assisted living facilities.
Breach of contract. Almost all assisted living facilities require prospective residents to sign a contract as a condition of admission. Scrutinize the contract for waivers of liability or of the resident's right to a jury trial. Facilities can assert such waivers whether or not a plaintiff pleads a separate breach of contract claim. Usually such waivers impose mandatory arbitration of all claims, including tort and contract claims.
Most states limit contract damages to foreseeable economic damages, so don't plead this as your only liability theory. However, the contract may have required that certain services be delivered to the resident-activities, assistance with daily living, 24-hour supervision-that were not provided. If the resident did not suffer physical injury from the facility's failure to deliver services, the defense will argue that evidence of such failures should be excluded at trial. You can argue that this evidence is admissible to prove contract damages and to recover monies for services that were not provided.
The defense may respond that contract damages would be based on speculation, since the plaintiff failed to quantify the services that were not provided. To preempt this argument, have your client provide a good-faith estimate of the percentage of services that he or she did not receive.
If you have a strong negligence claim based on a discrete event, such as a fall that caused a hip fracture, you may prefer to omit the contract claim to avoid confusing the jury with collateral facts and issues unrelated to your client's damages.
Negligent hiring and/or retention. Consider this claim when the case involves intentional torts, such as assault, committed by an employee who the defendants knew or should have known was a potential danger to residents. Obtain the employee's personnel file early in litigation; if you discover evidence of the defendant's knowledge, amend the complaint to include this claim before the statute of limitations expires.
Also consider suing the employee individually. If the same defense firm represents both the employee and the corporation, it will be difficult for the defense to argue that the employee was not operating within the scope of his or her employment.
When the case involves an intentional tort, always check the terms of the facility's insurance coverage to determine whether any exclusions apply. If the policy excludes coverage for intentional torts, you may want to dismiss the claim against the employee after you have obtained a ruling that he or she acted within the scope of employment. Then, if you recover damages against the facility under a general negligence theory, this ruling will make it difficult for the defense to argue in a subsequent declaratory judgment action that liability insurance coverage for torts does not apply.
Wrongful death. When there is evidence that the facility's negligence caused or contributed to the resident's death, you should assert wrongful death and survivorship claims. Also plead any claims for injury that did not contribute to the death with your survivorship claims.
Determine what damages you can recover under the wrongful death statute in your jurisdiction. If the law allows only economic damages, you may decide to forgo a wrongful death claim.
Punitive damages. Economic damages in an assisted living case usually are not impressive because most residents are too old or infirm to hold jobs, and any preexisting conditions that your client has may weaken the compensatory damages claim. Therefore, plead punitive damages whenever possible. Making a punitive damages claim will also provide a basis for exploring the defendant's conduct toward other residents who experienced neglect similar to your client's. Courts around the country have upheld such claims against nursing homes, and these precedents should apply to assisted living facilities.
In almost every assisted living case, you will need experts to establish causation and damages. Since many residents injured in assisted living facilities require long-term care in a nursing home, consider obtaining a life-care plan from a qualified expert. In most cases, you will need a medical expert to establish causation, support the life-care plan, and testify to life expectancy. When determining whether the facility breached regulatory or community-practice standards in admitting a resident whose needs exceeded its capabilities, have an expert evaluate the resident's condition and the relevant admission criteria.
Be prepared for a battle over the admissibility of your experts' testimony. Selvin v. DMC Regency Residence, Ltd., a Florida case, is a good example. In Selvin, an elderly resident of an assisted living facility wandered off and was found dead in a nearby canal. The plaintiff alleged two separate theories of liability: The first was a statutory wrongful death action, and the second was based on alleged violations of statutes relating to assisted living facilities.
The plaintiff claimed that the facility had a common law and statutory duty to supply at least the level of services and care that all licensed assisted living facilities generally furnish residents of the decedent's age and health condition.
The plaintiff sought to introduce expert testimony that specific safety precautions that the defendant had not taken were the industry standard, including building a fence to prevent elderly residents from wandering near a dangerous area of the canal. The trial court excluded this testimony, finding that the facility had no legal duty to fence off the canal to the general public.
The appellate court reversed, finding that the facility's undertaking to furnish certain services created a legal duty to protect residents. The court also held that the trial court had erred in excluding the expert's testimony regarding industry standards.
Experts may also be helpful in cases involving falls, depending on the facts of the case. If the facility's staff simply dropped the resident during a transfer or made some other obvious mistake, an expert may not be necessary. In more complex cases, an expert will help the jury understand the facility's negligence in failing to implement adequate fall-prevention measures.
For example, if the resident came to the facility with multiple risk factors for falling-such as dementia, unstable gait, arthritis, or a history of falls-that were never assessed or planned for, and fell while wandering the hallway, retain an expert to discuss how the standard of care for fall prevention was breached. To establish causation, the expert will testify that if the facility had followed appropriate standards, the fall, more likely than not, would have been prevented.
As the use of experts in assisted living cases is an area of first impression in many jurisdictions, educate the court with a trial memorandum addressing your expert's testimony before trial.
Liability for negligence by assisted living facilities is a new and evolving area of the law, and attorneys who litigate these cases should strive to establish favorable precedent for those who follow. These claims, like those involving nursing homes, help protect the rights of elderly Americans by ensuring that the industry follows standards to keep facility residents safe.
ROBERT L. MOLLICA, STATE ASSISTED LIVING POLICY: 2000, at 3 (Nat'l Acad. for State Health Pol'y (Portland, Maine) Nov. 2000).
 Holt v. Clarksville Residential Care Ctr., No. 50300430 (Tenn., Montgomery Cir. Ct. filed Nov. 11, 2002).
 22 VA. ADMIN. CODE §40-71-150(F) (West 2003 & Supp. 2004).
 For example, Montana law prohibits assisted living facilities from admitting patients who are a danger to self or others (aside from being at risk of leaving the facility), in need of physical or chemical restraints, or have severe cognitive impairments rendering them incapable of expressing needs or making basic care decisions. MONT. CODE ANN. §50-5-226 (2002). Florida law prohibits admission of residents who require 24-hour nursing care. FLA. STAT. ch. 400.426(12) (2003).
 See, e.g., IOWA ADMIN. CODE r. 321- 25.23(3)(c)(231C) (2004); TENN. COMP. R. & REGS. 1200-8-11-.05(6) (2004).
 See, e.g., FLA. ADMIN. CODE ANN. r. 58A-5.0181(1)(b) (2003); UTAH ADMIN. CODE 432-270-10(5)(b) (2003).
 See, e.g., IDAHO CODE §16.03.22- 422.07.a (Michie 2003); OR. ADMIN. R. 411-056-0020(1)(a)(A) (2004).
 See, e.g., ARIZ. ADMIN. CODE R9-10-705.1 & .2 (1998); MISS. REGS. pt. I §A-122.1.b(1) & (2) (2003); MONT. CODE ANN. §50-5-226 (2003); TENN. COMP. R. & REGS. 1200-8-11-.05(8) (2004).
 See, e.g., N.M. ADMIN. CODE tit. 7, §8.2.19 (B) (2004); S.D. ADMIN. R. 44:04:04:12.01.(1) (2000); WIS. ADMIN. CODE §HFS83.06(1)(a) 4.a (2000).
 See, e.g., MO. REV. STAT. §198.073.1 (2003).
 See, e.g., N.J. ADMIN. CODE tit. 8, §36- 4.1(f) (2004).
 See, e.g., D.C. CODE ANN. §44- 106.01(e) (2) (2004); MISS. REGS. pt I §L-122.1.b(1) & (2) (2003).
 See, e.g., 210 ILL. COMP. STAT. 9/75(c)(5) (2003).
 See, e.g., D.C. CODE ANN. §44-106.01.(c) (2004); N.M. ADMIN. CODE tit. 7, §8.2.19 (2004).
 See, e.g., FLA. ADMIN. CODE ANN. r. 58A-5.0181(1)(k)(2) (2003); MISS. REGS. pt. I §L-122.1.b(4) (2003).
 See, e.g., ARK. CODE ANN. §20-10-1209 (Michie 2004); CAL. HEALTH & SAFETY CODE §1430(b) (West 2003); CONN. GEN. STAT. §19a-550(e) (2003); see also D.C. CODE ANN. §44- 105.05 (2004).
 See, e.g., Winkler v. Interim Servs., Inc., 36 F. Supp. 2d 1026 (M.D. Tenn. 1999); Chalfin v. Beverly Enters., Inc., 741 F. Supp. 1162 (E.D. Pa. 1989), reconsideration denied, 745 F. Supp. 1117 (E.D. Pa. 1990). But see Dorn v. McTigue, 157 F. Supp. 2d 37 (D.D.C. 2001).
 Beaty v. Manor Care, Inc., No. 02-1720-A, 2003 U.S. Dist. LEXIS 25044 (E.D. Va. Feb. 10, 2003). The case gave rise to a detailed memorandum opinion that upheld liability theories based on actual and constructive fraud, violations of the Virginia Consumer Protection Act, and false advertising.
 See, e.g., TENN. CODE ANN. §§ 71-6-101 to 71-6-120 (2002).
 See, e.g., Tex. Health Enters., Inc. v. Geisler, 9 S.W.3d 163 (Tex. App. 1999) (repeated staffing shortages and other acts of negligence supported punitive damages); Estate of McIntyre v. Transitional Health Servs., Inc., No. 2:96CV00424, 1998 U.S. Dist. LEXIS 13965, at *17-18 (M.D.N.C. May 20, 1998) (defendant's knowledge that it was violating several health codes and its failure to remedy those violations might reasonably be found to constitute reckless indifference to residents' rights); see also Christopher Vaeth, Allowance of Punitive Damages in Medical Malpractice Action, 35 A.L.R. 5th 145 (1996).
 807 So. 2d 676 (Fla. Dist. Ct. App. 2001).
 See, e.g., Walker v. S.E. Ala. Med. Ctr., 545 So. 2d 769, 771 (Ala. 1989) (not requiring plaintiffs to present expert testimony because the alleged breach of care-leaving the bed rail down contrary to doctor's orders-was so apparent as to be understood by a layperson).