Press Release: Virginia Court Upholds Consumer Protection and Punitive Damage Claim Against Hickory Hill Retirement Community, LLC

Estate of Charles Henderson v. Hickory Hill Retirement Community, LLC et al.  Law No. CL 19-187

On July 24, 2017, Charles Henderson was admitted to Hickory Hill assisted living facility.  He had dementia and the family explained to the staff that Charles became easily dehydrated and needed to have fluids pushed regularly. Because of his dementia he would forget to drink.   The staff indicated that was not a problem, as they specialized in handling demented residents like Mr. Henderson.

About two weeks later Mr. Henderson was taken to the VA hospital for a previously scheduled appointment by his son.   His son, Matt, had been out of town and when he picked up his father he noticed that he looked lethargic.  Upon presentation to the hospital, he discovered that because of extensive kidney damage, his father was now terminal.  The kidney damage was caused by a combination of severe dehydration and rhabdomyolysis, which is a form of muscle injury that occurs typically when patients are left immobile for a prolonged period of time.

The Hendersons filed a negligence and wrongful death case in Virginia. Their lawsuit also alleged that Defendants violated Virginia’s Consumer Protection Act, which allows for attorney’s fees and treble damages.  Defendants sought to dismiss the consumer protection claim and Plaintiff’s claim for punitive damages in a case currently pending in Nottoway Circuit Court. Plaintiff opposed the Motion on various grounds, arguing that the remedial statute is to be interpreted broadly to meet its purpose of protecting consumers.

In a recent decision, Judge Paul W. Cella ruled that Plaintiff had stated a viable cause of action under Virginia’s Consumer Protection Act. Judge Cella rejected the defense argument that the Virginia Code, section 63.2-1800(B), preempted consumer protection claims in Virginia, noting that his decision was supported by other Virginia precedent including Humphrey v. Leewood, 73 Va. Cir. 346 (Fairfax 2006) and Beaty v. ManorCare, Civil Action No. 02-1720-A (E.D. Va. 2003).

The Court also allowed Plaintiff’s claim of punitive damages to stand based on allegations that Defendant’s staff was not properly trained to care for such residents and that the facility had a bad regulatory history with their licensing authority, the Department of Social Services.  The Department of Social Services had also investigated and substantiated complaints involving the neglect of Mr. Henderson, which were substantiated upon investigation.  Plaintiff had alleged the facility had prior problems with staff training and lack of proper service planning for their residents.  A service plan in the assisted living setting is like a plan of care, which guides the staff in providing services.  The staff never got around to devising a service plan for Mr. Henderson, which likely contributed to his neglect.

In many ways our long-term care system is the weak link in our over-burdened healthcare system, explains the Henderson’s attorney, Jeffrey J. Downey.   As assisted living facilities seek to compete with nursing homes, they increasingly recruit high acuity or seriously ill patients. Without proper facilities or staff training, those residents can be put risk for avoidable injuries, like pressure wounds (bed sores) falls, malnutrition and dehydration.   While many facilities advertise 24-hour nursing supervision, the level of actual supervision varies greatly.

In the Henderson case, the facility marketed themselves as being suited to deal with residents who had hydration and other dietary issues.  While they did an initial test to assess hydration upon the day of admission (skin tenting test), that test was not repeated by nursing staff, as reflected in the chart.  By the time Mr. Henderson was taken to the hospital his condition was so severe that the only option afforded him was hospice care.  The facility’s own records confirmed that Mr. Henderson had gone without fluids for long periods of time, but in discovery Defendant’s denied that they were previously placed on notice that Mr. Henderson was prone to dehydration.

Often times assisted living facilities, with relatively weak regularly standards, can escape liability for the neglect of their residents.  These facilities are not as stringently regulated as nursing homes or hospitals.    In addition, many of the neglect issues, like basic toileting or providing activities, may not provide the damages to support a traditional malpractice case.  The Virginia Consumer Protection Act has stronger teeth, because it provides for attorney’s fees and treble damages, explains Downey.   That can be a game changer in the traditional relationship between a sophisticated corporate actor and family that is struggling to figure out the system.

Many assisted living facilities are now using mandatory arbitration agreements to push their residents into waiving their rights to pursue a civil case in Court, should they be neglected or killed.  We should not have to surrender our civil rights to receive long term care, explains Downey. Such agreements should be rejected and crossed out of any resident agreement provided by the facility. In Virginia, residents who suffer injury can also opt out of these jury trial waivers if done within 60 days of injury, or where injury causes death, within 60 days of the qualification of an executor of the estate. Va. Code §8.01-581.12.

This is an important decision as the Virginia Consumer Protection act (VCPA) helps level the playing field for families who are seeking admission to assisted living facilities.  Often families going through this process are unfamiliar with the paperwork, standards or staffing levels.  They may assume, incorrectly, that the assisted living facility is providing daily nursing assessments, which vary greatly between facilities.  Through the allowance of attorney’s fees under the VCPA, an attorney can pursue civil matters that might not be viable as stand-alone malpractice cases.  For example, if a facility is not following a resident’ s rights to allow visitors, or is restricting their rights to privacy, the VCPA presents a viable remedy for such residents, explains Downey.

For more information on this issue, or for a free consultation, call the Law Office of Jeffrey J. Downey,

Contact Information:

Law Office of Jeffrey J. Downey, PC

8270 Greensboro Drive, Suite 810

McLean, VA  22102

Phone: 703-564-7318

Email: jdowney@jeffdowney.com

On the web at Jeffdowney.com

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