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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.[1] 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.[2]

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.

Admission criteria

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.[3] Other states have similar limitations.[4]

These are some common state law criteria that would preclude a person’s admission to assisted living facilities:

1. is a threat to self or others[5]

2. has a contagious or an infectious disease[6]

3. requires care beyond the facilities’ skill[7]

4. requires physical and/or chemical restraints[8]

5. requires 24-hour nursing or other care[9]

6. is bedridden[10]

7. requires specialized long-term care[11]

8. has stage III and/or IV pressure sores[12]

9. requires more than minimal assistance in moving to a safe area during an emergency[13]

10. is less than 18 years old[14]

11. requires help with tube feeding[15]

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.

Case selection

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:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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?

7. Whether the client has significant economic damages that are not encumbered by a Medicare or Medicaid lien.

8. 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.

Liability theories

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.[16] Plaintiffs have advanced consumer protection theories even against health care providers,[17] 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.[18] 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,[19] 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,[20] and these precedents should apply to assisted living facilities.

Essential experts

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.[21] 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 appel
late 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.[22] 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.

Notes

[1]ROBERT L. MOLLICA, STATE ASSISTED LIVING POLICY: 2000, at 3 (Nat’l Acad. for State Health Pol’y (Portland, Maine) Nov. 2000).

[2] Holt v. Clarksville Residential Care Ctr., No. 50300430 (Tenn., Montgomery Cir. Ct. filed Nov. 11, 2002).

[3] 22 VA. ADMIN. CODE §40-71-150(F) (West 2003 & Supp. 2004).

[4] 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).

[5] See, e.g., IOWA ADMIN. CODE r. 321- 25.23(3)(c)(231C) (2004); TENN. COMP. R. & REGS. 1200-8-11-.05(6) (2004).

[6] See, e.g., FLA. ADMIN. CODE ANN. r. 58A-5.0181(1)(b) (2003); UTAH ADMIN. CODE 432-270-10(5)(b) (2003).

[7] See, e.g., IDAHO CODE §16.03.22- 422.07.a (Michie 2003); OR. ADMIN. R. 411-056-0020(1)(a)(A) (2004).

[8] 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).

[9] 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).

[10] See, e.g., MO. REV. STAT. §198.073.1 (2003).

[11] See, e.g., N.J. ADMIN. CODE tit. 8, §36- 4.1(f) (2004).

[12] See, e.g., D.C. CODE ANN. §44- 106.01(e) (2) (2004); MISS. REGS. pt I §L-122.1.b(1) & (2) (2003).

[13] See, e.g., 210 ILL. COMP. STAT. 9/75(c)(5) (2003).

[14] See, e.g., D.C. CODE ANN. §44-106.01.(c) (2004); N.M. ADMIN. CODE tit. 7, §8.2.19 (2004).

[15] 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).

[16] 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).

[17] 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).

[18] 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.

[19] See, e.g., TENN. CODE ANN. §§ 71-6-101 to 71-6-120 (2002).

[20] 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).

[21] 807 So. 2d 676 (Fla. Dist. Ct. App. 2001).

[22] 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).

Health and safety is a daily part of modern life and an ever increasing part our working lives. In the UK you have a wide range of standard documents such as method statements, risk assessments COSSH assessments, Health and Safety Manuals etc.

Often when you purchase machinery or a substance you will find it originated in another country made by people who speak a different language. But it will (or should) come with instructions for usage in the language of its destination country. Such technical manuals will no doubt have been translated into possibly many languages. This will have been completed with the assistance of a translation agency.

However, people now migrate between countries more then ever. We need only look at the migration in the EU. For example we have Polish people arriving into Britain and workers from the Ukraine now replacing them in Poland. People are on the move.

Businesses are using this migration of skill and or cheap labour. But often the migrant worker will speak limited amounts of the new language(when they arrive) and read / write it this new tongue even less. This causes potential health and safety issues if not considered and addressed. This is where language translations should be considered.

Under English law a person is deemed to have read something if they have signed it. But surely we enter a grey area if the person can obviously not read in the language?

This is a larger concern to directors and business owners as they now can be made personally responsible for such issues as ‘corporate manslaughter’.

We must also consider the growing ‘claims culture’. After an incident could your migrant worker, Motivated by a large pay-out, suddenly lose their ability to communicate in English? And how will you prove that they are reducing their language abilities? Incidences of similar abuse already occur with native workers do they not?

With these issues in mind, will your insurance company start to question your policies in regards language translation? The question must be when will this issue become serious enough for them to require action.

They only true way to avoid this is to consider language translation as part of the initial employment cost of migrant workers and as part of the health and safety audit. If you cannot be sure that your employee can read documents related to the health and safety parts of their job you will need to have a translation available in their language.

Likewise, if they are to be given any interactive training, interpreting will be required if language levels are not high enough. For the larger business it might be possible to give additional health and safety training to a member of staff who can speak in these other languages and ensure they both receive the translations and understand any training given. They can then assist or manage the training of these new staff.

As stated at the beginning on this article, equipment manuals are often translated into many languages. On this basis you may be able to obtain copies of manuals with translations into the languages of your migrant team. These translations should be a consideration on future pre-purchase discussions.

Some readers may be dismissing the above statements. If that is the case, visit the HSE’s (Health & Safety Executive) website and you will see that they already show translations of various documents into 28 languages!

The recent tragedy at Virginia Tech illuminates the colossal failure of government and public policy to all our citizens who have mental disabilities and are ignored, denied. blurred, blamed and are invisible. The Federal Government should lead in establishing an environment of reality and acceptance of treatment without the ignorant stigma of shame. Mental problems are just as legitimate as a cut needing stitches or a heart attack. Yet people who seek help for a psychological problem are still looked upon as flawed and blamed for not being able to handle their own problems.

We need public education to encourage individuals to go for help when they recognize feeling out–of-control or in a situation where they need counseling, support and advice. Some problems are chemical imbalances and often medications can reduce symptoms or stabilize the individual, if the person takes the medication. They don’t always take them because the medications have such uncomfortable side effects that the patient believes that the disease is easier to cope with than the drugs.

Other problems are situational and don’t need to be medicated but brought to the surface, worked out and resolved. The best way to do this is through “talk therapy.” There are many modalities that effectively work to educate and empower people to stop repeated patterns of destructive and self-deprecating behaviors. Being molested as a child is one example. There is no drug to resolve the damage done and continuing negative effects on adult relationships like trust issues, guilt, shame and sexual confusion and dysfunction. These issues need to be resolved by other means.

Medicating such a wound just exacerbates the dilemma and doesn’t resolve or heal the wound. Neither does behavior modification.

Grief is similar issue. Typically it isn’t pathological, yet it hurts like hell for a long time. Medication isn’t recommended. Talking about the pain and expressing the hurt is a healthier way to deal with grief. Knowing what to expect, the hot spots and the time frame is empowering. Just knowing that the immediate pain will heal itself is part of the healing process.

Historically, we as a nation have attached a stigma of shame on the individual suffering from a mental problem and on the family. I know because in 1956 my father was diagnosed with bipolar disorder and rather than go to a hospital and inflict shame on his family and himself he killed himself at 45 years old.

In the 1960’s we began systematically to empty out all our mental hospital. Often they were less than ideal, but rather than reform them we dumped the patients onto the street. Most homeless people have serious mental health problems and so do most inmates in jail. Today when a person is identified with serious mental problems there is no place to put him or her, few long-term beds and certainly not an adequate amount are available for the mentally ill. Half way houses substitute as a safe place to be housed, but they are rarely safe. And inmates in jail don’t get adequate mental health help to prevent recidivism, returning to jail after they are released.

Then in the 1990’s the Health Maintaince Organizations (HMO’s) appeared on the reimbursement stage and embraced short-term therapy with an emphasis on behavioral modification and limited psychotherapy to six or on occasion twelve sessions. Any additional sessions need to be approved by the HMO before they would be paid. This was the death knoll to effective therapy for the severely mentally ill.

Behavior modification is basically a band-aid type of therapy believing if you change your thoughts you heal any pain or problems from old wounds. Just sweep it under the carpet and it will fade away. This works for some minor problems and patients who can adjust in a very structured modality but is not realistic for more severely wounded people, some need months and even years of therapy. The most seriously disturbed patients may take months just to establish trust in their therapist before they even reveal what happened to them.

States don’t have enough money to adequately fund Community Mental Health Programs. Many people fall between the cracks even when identified and mandated to get out patient therapy. Mental health practioners are overloaded, overwhelmed and underpaid. It is a job with high burn out and high turn over. A patient may begin with one therapist, who moves on and the patient is transferred and has to start all over with someone else.

Private insurance limits the number of visits they will pay for through reimbursement and co-payments. They closely monitor the number of visits, that are regulated by HMO staff. A mental health professional literally has to beg for additional visits when deemed necessary. Additionally the HMO tells the practitioner what they will pay and it is rarely his or her regular fees, always less.

Mental health must become a higher priority in this country to prevent innocent people from becoming victims. All of society is responsible for this tragedy. We must demand more education, better treatment and prevention strategies to avoid similar incidents in the future.

This is a broken system and needs to be fixed. Now!