Fairfax Circuit Court Upholds Consumer Protection Claim Against Virginia Assisted Living Facility

by Jeffrey J. Downey, Attorney

In a victory for Virginia consumers, a Fairfax Circuit Court Judge recently ruled that Plaintiff had stated a viable cause of action against Greenspring Village Inc., for alleged misrepresentations they made when Plaintiff, Sara McCorkle, transferred to their assisted living facility.

The Complaint alleges that when Ms. McCorkle was admitted to Greenspring Village, operated by Erickson Senior Living LLC, they represented certain staffing levels were available and stated that they had sufficient staffing to provide all of Ms. McCorkle’s ADLs (activities of daily living).  As Ms. McCorkle had dementia, she would often shower in the morning, but required staff assistance to safely do so. Upon being transferred from independent to assisted living, the family sought assurances that the staff would be able to provide the assistance with toileting and bathing she required.  After being transferred, the family soon observed that there was not adequate staff in the building to care for Ms. McCorkle and on December 21, 2020, the staff found Ms. McCorkle in the shower, having fallen and suffered burn injuries.

Plaintiff filed a Complaint alleging negligence, breach of contract, punitive damages, and violations of the Virginia Consumer Protection Act.  Defendants filed a demurrer seeking to dismiss the Consumer Protection claim, arguing that Plaintiff’s alleged misrepresentations involved opinion and not fact, as required by Virginia law.  On June 24, 2022, Judge Christie A. Leary overruled the Defendants’ demurrer and allowed the consumer protection claim to go forward. Plaintiff’s opposition to the motion can be found here.

This is an important ruling for anyone who seeks long-term care in Virginia, explains nursing home attorney Jeffrey J. Downey.  Often these facilities require patients to waive their rights to sue in Court by signing mandatory arbitration provisions.  And while no such provision existed in this case, nursing homes and assisted living facilities to have complicated admission procedures, where the patient or the family executes numerous documents upon admission, often not fully understanding what they are signing.  Facilities like Erickson clearly have the upper hand in these consumer transactions and it’s vitally important that residents can maintain claims under the Virginia Consumer Protection Act, which also allows a successful plaintiff to recover attorney’s fees.

The Virginia Consumer Protection Act, Va.  Code 59.1-196, et. seq allows a resident to sue a long-term care facility where they promised services that they did not deliver.  Under Va. Code § 59.1-200, prohibited practices include, inter alia, a long list of actionable conduct:

  • Misrepresenting the source, sponsorship, approval, or certification of goods or services
  • Misrepresenting that goods or services have certain quantities, characteristics, ingredients, uses, or benefits
  • Misrepresenting that goods or services are of a particular standard, quality, grade, style, or model
  • Using any other deception, fraud, false pretense, false promise, or misrepresentation in connection with a consumer transaction

This facility was also investigated for regulatory violations.  Under Virginia law, assisted living regulations set standards a facility is required to follow, explains Downey. Regulations are published by the Department of Social Services which also investigates complaints of neglect against assisted living facilities.

In a February 22, 2021, licensing investigation, the Department of Social Services found that Greenspring Village failed to ensure that they provided “supervision of residents schedules, care, and activities, including attention to specialized needs, such as fall prevention.”  The investigation also found that the facility failed to create an appropriate comprehensive individualized service plan (“UAI”) that accurately described the needs of the patients, specifically Ms. McCorkle.

Where an assisted living facility fails to follow regulatory standards, it can be sued in court in a civil matter.  For example, assisted living facilities are not supposed to be treating or admitting patients with significant pressure wounds (bed sores) beyond stage II, with some limited exceptions explained to Downey. Most assisted living facilities are not set up to provide the type of pressure off-loading and nutritional interventions to prevent heel pressure wounds, also known as decubitus ulcers. 22 VAC 40-73-310 (H). In such situations the facility should not admit the resident and where the resident develops significant pressure wounds, the facility needs to seek discharge.

The McCorkle v. Erickson Senior Living LLC ( Law No. 2022-4439) case is currently pending in Fairfax Circuit Court and is set for trial on March 6, 2023.

The Law Office of Jeffrey J. Downey, P.C. (Tysons Corner)

8270 Greensboro Drive, Suite 810, McLean, VA  22102

Phone: 703-564-7318

On the web at https://www.jeffdowney.com

Email: jdowney@jeffdowney.com