Avoiding legal claims in assisted living

The recently published 2016 Claim Report from CNA Insurance Companies’ Aging Services division identified the highest quantity of claims to occur in skilled care facilities, but the highest payments on claims were for assisted living facilities. This finding should not be unexpected.

Many assisted living facilities tend to depart from the maximum levels of care they are authorized to provide and are held accountable for failing to satisfy the higher level of care they have voluntarily assumed. Because assisted living residents are typically healthier than skilled care residents, serious injury is considered to demand a higher payout on the claim because of fewer comorbidities. In other words, the only factor contributing to the injury is the malpractice.

Further, because assisted living residents tend to be younger than skilled care residents, they will either live longer with their injuries or their deaths will be considered more untimely and tragic than those of skilled care residents. Both result in higher verdicts or settlements.

Assisted living facilities should:

1. Be mindful of the limitations on levels of care they are required to provide to avoid claims of negligence for providing a higher level of care.
2. Probe deeply into resident functionality during the admission process to uncover those who are attempting to slide in under the line to qualify for the lower cost of assisted living.
3. Evaluate residents regularly for changes in condition that would disqualify them for assisted living and require skilled care.

Assisted living facilities and their management companies are well aware of the requirements governing when residents should be moved to skilled care. These limitations should be strictly enforced because providing skilled care is an excellent set up for a negligence claim.

Skilled care is almost always required when residents:

• need regular-to-constant skilled nursing or medical care
• have infectious diseases
• are a danger to themselves or others
• have Stage III or higher pressure ulcers
• require more than the minimal assistance with activities of daily living (ADLs)
• cannot evacuate the building by themselves
• require restraints.

When caring too much can get you in trouble

Many states do not recognize assisted living facilities as providers of medical care. Conversely, most states do recognize skilled care facilities as providing medical care. That distinction is critical when defining what the negligence duty is. If the assisted living facility exceeds its regulated standards and provides medical care, it will be held to the higher standards of a medical provider. Blurring the lines invites trouble for the assisted living facilities on a regular basis. The scenarios below are offered as illustrations of when the assisted living facilities may or may not be considered to exceed the scope of their practice.

Consider this hypothetical scenario: A relatively independent resident who uses a walker falls in her room behind closed doors. As long as the facility did not create a fall hazard in the room—by, say, leaving the floor wet or leaving her walker where she cannot get to it—a finding of negligence is unlikely. The assisted-living facility is not required to provide constant nursing care, which includes, contrary to a common plaintiff’s argument, remaining in line-of-sight supervision.

In another scenario, a cane-wielding resident of a memory care unit uses his cane to threaten residents and staff. He poses no danger so long as he stays on psychotropic medications administered by a doctor as part of a treatment plan for dementia. However, his condition changes after his family, citing the side effects of his medications, demands that the medications be stopped. Unfortunately, the man threatens a resident, resulting in an injury-causing altercation. Arguably, this resident should never have been admitted to assisted living because of a medical problem that could easily render him a danger to himself and others and which required close monitoring by medical staff.

Suppose an assisted living facility resident, who had only mild dementia and had never shown signs of poor judgment or elopement risk, is hit by a train and survives the accident. She had told the nurse that she was going to the local convenience store to buy cigarettes. As an assisted living resident with no prior concerning behaviors, she had the right to come and go at will. In this scenario, the facility was not on notice of this poor judgment and had no duty to protect the resident from the events that occurred.

And, consider the case of an assisted living resident who uses a motorized wheelchair and rolls herself into a reflecting pool while on a facility-sponsored outing to a local monument. This was an organized outing of adults who had no cognitive deficits or medical conditions that would give notice of a foreseeable danger. The standard common law negligence duty, with its standard defenses of contributory negligence and assumption of the risk, would apply, not a heightened duty for medical providers.

Defining negligence in such cases depends on what obligations and accompanying care levels the facilities assume. Medical standards do tend to apply when facilities are engaged in medical acts, such as distributing medications. But courts in several states—including New York, Virginia, Tennessee, Ohio, New Jersey and Illinois—have issued rulings that reinforce the separate regulations governing skilled nursing facilities and assisted living facilities.

For example, the Supreme Court of Virginia held that an assisted living facility only had a duty of ordinary care to its residents while they were on the property. When a resident left his facility and threw himself off a bridge to his death, the facility was not considered to have been negligent. A New Jersey federal district court held that assisted living facilities were not covered by the state’s nursing home regulations and dismissed any claims of malpractice under those rules.

An Ohio veterans’ assisted living home was not held liable when a resident fell off a second-floor balcony to his death. The veteran was mentally competent, with only mild ambulatory impairment and mild memory deficits, and so the court applied a standard premises liability analysis.

Finally, a New York assisted living facility resident, who ambulated independently, broke his hip while bowling with the activities director and other residents. The common law negligence claim against the facility was dismissed. The facility was not negligent, the court ruled, because it was not an insurer of the safety of the resident, a competent adult.

For laymen, assisted living facility liability can be confusing and complex. Some states do consider assisted-living services to be medical in nature, with duties defined by medical experts. Elsewhere, courts resort to the lower, common-law standards. In California and Arizona, elder abuse claims can be successfully lodged when assisted living facilities fail to provide services for activities of daily living that residents require. Thus, it’s critical to understand and comply with the rules in your state.

If medical care is the issue being litigated, the assisted living facility may have been providing care beyond its regulatory mandate. When you assume a higher burden, you will be required to provide care that comports with that higher standard. The moral of the story? Stay true to the well-defined limitations for assisted living facility admission—or be prepared to suffer the consequences of failing to provide a higher level of care. And for assisted living, those consequences can be very expensive because the residents’ injuries, from which they may suffer for many years, cannot be discounted by co-morbidities.

Nancy Reynolds is co-leader of the long-term care industry practice team at national law firm LeClairRyan. She can be reached at nancy.reynolds@leclairryan.com.