TRENDS IN SENIOR LIVING LITIGATION October 26, 2017 Douglas Armstrong, Counsel Hanson Bridgett LLP 2017 Willis Towers Watson. All rights reserved.
Douglas Armstrong, Counsel Doug has extensive experience working with health and senior care clients. Before joining Hanson Bridgett, he served as Vice President, General Counsel for ARV Assisted Living and then Senior Vice President, Assistant General Counsel for Atria Senior Living, a role he had for more than 17 years. During much of that time, Doug served on the California Assisted Living Association's Board of Directors and Public Policy Committee. 2
Current Trends in Claims and Actions The number of persons aged 65 or older is expected to increase to approximately nineteen percent of the nation's population by 2030. Assisted living communities are now serving residents who have higher acuity levels and need greater assistance with activities of daily living than ever before. The growing number of frailer residents in assisted living communities has led to increased awareness of elder abuse and neglect claims. Tort reform, damages caps, and improved risk management measures have reduced number and attraction of traditional medical malpractice cases and led to an increased focus on long term care providers. Punitive damages remain uncapped in many states and are recoverable in cases involving frail, elderly residents. 3
Current Trends in Claims and Actions There are three principal factors that differentiate the care and services provided by assisted living communities from those provided by skilled nursing communities: Resident choice Resident dignity Resident privacy Failure to provide that choice, promote that dignity, or protect that privacy will lead to claims and/or actions filed against an assisted living community. 4
Types of Current Claims and Actions Plaintiffs' attorneys scour state licensing reports for deficiencies upon which to base a claim or action. Most common deficiencies reported: Medication administration errors Resident care Ongoing resident assessment Resident admission requirements Staff training Maintenance and building code Food service Administrative record-keeping Emergency preparedness Abuse/neglect reporting/investigation 5
Types of Current Claims and Actions Litigation against assisted living communities often involve allegations of: Wrongful resident retention and failure to transfer a resident to a more acute setting Medication administration errors Improper placement/wrongful resident admissions Falls Abuse and neglect Elopement/wandering Non-adherence to or failure to comply with community rules and procedures Corporate negligence (i.e., staffing) 6
Class Action Lawsuits Five class action lawsuits have been filed against assisted living providers in California and Florida since 2013; two cases have settled for approximately $20 Million Common causes of action have been plead in the five actions: Violation of the Consumer's Legal Remedies Act (CA Civil Code 1750 et seq.) Elder Financial Abuse (CA Welfare & Institutions Code 15610.30) Unlawful, Unfair and Fraudulent Business Practices (CA Business & Professions Code 17200 et seq.); Florida Deceptive and Unfair Trade Practices Act (Sections 501.201 et seq., Florida Statutes) Unruh Civil Rights Act (CA Civil Code 51 et seq.) 7
LITIGATION MANAGEMENT Class Action Lawsuits Common factual allegations: Defendant AL provider has engaged in a scheme to defraud residents and family members by falsely representing in its admission contract and marketing materials that: Each resident will be provided the care services that the resident needs as determined by the resident assessment conducted by the AL provider The amount of care needed by a resident will be translated into a specific number of care points for which the resident will be charged on a monthly basis The budget for staffing at the community is related to the aggregated care points generated by the resident assessment and the AL provider will ensure that the community has at all times sufficient numbers of trained staff to deliver the amount and type of resident care identified in the assessment Defendant AL provider actually conceals and fails to disclose that as a matter of corporate policy, facility staffing per shift is set based on pre-determined labor budgets calculated to return desired profit margins and does not alter the number of staff or hours per community or shift regardless of changes in occupancy or resident needs as determined by assessments 8
New ADA/Civil Rights Cause of Action Allegations that AL provider violated ADA and/or civil rights act by: Failing to make community readily accessible to/usable by persons with disabilities due to physical access barriers that limit or deny full/equal access Failing to make reasonable modifications to its policies and procedures (i.e., modify its staffing policies and procedures to ensure that staffing in sufficient numbers and with adequate training to provide promised care) Failing to provide residents with mobility disabilities full and equal access to transportation services or providing them with an emergency evacuation plan that will properly evacuate such resident in the event of an emergency 9