Although the news is full of stories of negligence lawsuits in the seniors housing sector, Partner at California-based law firm Hanson Bridgett LLP Paul A. Gordon says that new interpretations of personal injury and discrimination laws are clogging the court system’s arteries, and don’t necessarily reflect higher incidences of harm. An expert in representing seniors housing and long-term care providers, Gordon deals with legal disputes involving independent living, nursing, memory care, assisted living and continuing care properties on a daily basis. Although 99 percent of such cases are settled before litigation and before what Gordon calls a “headline-grabbing jury verdict,” personal injury is still one of the most prevalent types of legal disputes in the space due to seniors’ vulnerability.
These legal cases vary greatly, Gordon says, and “while you may sometimes see a jury verdict of $100 million, it’s very rare, but it’s the kind of case that gets everyone’s attention. Personal injury cases are the most newsworthy.” For the most part, cases are settled without payment, he adds, and a discount on housing fees may be given to a senior on a monthly basis or a small fee may be allotted.
NREI: How prevalent are such lawsuits in the seniors housing sector today?
Paul A. Gordon: Personal injury has always been an issue because seniors have more healthcare needs, they are more susceptible, and they are living somewhere for a long time, possibly for the rest of their lives. No matter how good a provider is, it’s not unexpected that these people are going to have injuries or outcomes that are not considered good. If someone has a chronic medical condition that ultimately may lead to their death or disability, you can intervene or prolong their health, but you can’t necessarily prevent their decline. In these situations, it is always the case that these communities that provide care for seniors are subject to being sued for personal injury or bad clinical outcomes.
NREI: What are the most common incidents that lead to such lawsuits?
Paul A. Gordon: The most frequent occurrence in any retirement injury is a fall, which is the most common cause of death in terms of an incident or accident. A fall can happen anywhere in independent living, assisted living, or a nursing home. The difference in claims depends on when and how it happens and what the liability is based on the type of community.
In an independent community, you don’t have a lot of staff evaluating residents, but in a nursing home, the staff has an obligation to evaluate residents, so if someone falls and is injured, someone can claim that the staff should have evaluated person better and known their propensity to fall due to their history of falling in the past or due to a disease. In this case, you should have a fall protocol to implement the reduction of falling, physical therapy, or assisting a person when ambulating in certain circumstances, such as individuals who need some help getting to the toilet. The type of protocol and care depends on community they’re in. In skilled nursing, there’s obviously more assistance, where in independent living situations, you don’t have staff.
NREI: Why does it seem like there are more personal injury lawsuits now in this sector?
Paul A. Gordon: What’s changing is the legal theories that were once considered a negligence provision of services, a theory that plaintiff’s lawyers would use against providers. Now the plaintiff’s lawyers are using creative legal approaches to try to get more damages and dollar recoveries from these providers.
NREI: What are the categories of legal injuries?
Paul A. Gordon: The first wave is to claim there’s elder abuse or neglect. Historically, elder abuse was physical abuse in someone’s private home, where no one was around to witness with a caregiver and client. This kind of abuse also may have happened occasionally in the retirement community.
Today there’s a quality of care personal injury kind of case. Now lawyers are turning elder abuse law around to say the whole company is abusing residents by not having enough staff in the building to give appropriate care and that this abuse is intentional. These lawyers are trying to get punitive damages against these communities and attorney’s fees as they re-characterize the situation as elder abuse and neglect. The trend involves re-interpreting the facts to get bigger damages.
More recently, you also have plaintiff attorney’s trying to use disability discrimination laws to leverage against further legal theories, which historically haven’t been used that way. In a recent case, there’s an allegation that seniors housing is not providing adequate service to a resident with a disability, so the idea is that there’s illegal discrimination against disabled people. Now, instead of traditional applications of discrimination laws involving race, sex, gender, and religion, the most prevalent is a claim of disability discrimination that centers on the use of appliances such as motorized carts. For example, if an administrator sees someone driving a cart indoors among frail people, the fear is that the person will knock down other seniors waiting to get into the dining room. There are a lot of safety issues and regulations around these vehicles. There are cases around the rights to bring your cart to these spaces, how fast you can drive it, and if you are competent to drive it... Wheelchairs in the dining room, wheelchair lifts on buses and how to provide transportation come up fairly often.
NREI: What is one of the fastest growing areas of legal disputes in seniors care?
Paul A. Gordon: The fastest growing area is around complaints pertaining to service animals and emotional support animals. I receive weekly calls about these issues. Service dogs are trained to do something, such as a dog assisting a blind person. Emotional support animals, however, can include a cat, dog, turkey, snake, or bird, and are supposed to be allowed inside if the resident can show that that the animal will alleviate symptoms of their disability. Issues come up around that question of residents abusing that law that may not have an actual emotional disability. Some may buy a vest from the internet and get someone to write a note in their favor. Often, the claim that it’s a therapy animal only arises when they apply for it in their senior living community and later find out that there’s a no pet rule.
Seniors have more recently been disputing entrance fees in continuing care properties. They may challenge the retirement community about what is being done with this fee. Usually, it’s a $500 entrance fee, and over time the resident will come to question what it’s being used for, whether investments, reserves, or other things. Allegations are made despite the fact that normally, if a person buys a service and pays a fee, they don’t go after the business and start questioning what has been done. Many of these seniors are retired lawyers, CFOs, and accountants, and they begin to question how things are being managed and believe they have an investment, although legally, they don’t. There are many cases claiming they should have the same rights as a shareholder should have, which really pushes the envelope.
NREI: What kinds of prevention can deter these kinds of lawsuits against seniors housing providers?
Paul A. Gordon: Certain communities have the obligation to prevent injuries, and every state has regulations for nursing and assisted living that require assessment of residents at the time of move-in and periodically after that. The staff needs to monitor and implement prevention. In independent living, there may not be a contract or regulatory obligations, but sometimes even in independent living if it’s foreseeable that someone may have an injury, you may not be able to stand by and watch it happen. The rules and responsibilities are less clear in an independent living situation, and the care providers have to rely more on common law.
NREI: Would you say that independent living providers are dealing with riskier legal possibilities?
Paul A. Gordon: No, in general, it’s not a riskier investment because the population isn’t as vulnerable. Also, you don’t have a rulebook with extreme details pertaining to what you have to do to care for a specific person, so the obligations are not as clear when there is a problem.
There’s a phenomenon called acuity creep, where the level of the resident [care] creeps up to a level where liability becomes a problem. A person enters an independent retirement community without care needs and then develops a need, but the community is not designed to help. The resident, family and the owner of the community is not required to do anything about the new problem. But then the person falls and is not discovered for 72 hours, and that’s when everyone blames the provider. Assisted living costs more than independent living, and nursing homes cost more than assisted living generally. To save money, sometimes a family member tries to place a resident in independent living who should be in assisted living, and that’s when the risks arise.
NREI: How can seniors housing facilities prevent injuries leading to lawsuits? How can they protect themselves in legal terms from being sued?
Paul A. Gordon: I like to approach my clients with something I call a risk management audit. Most communities have contracts with residents and policies and procedures to deal with a fall protocol elopement, which is when a person with dementia who shouldn’t leave or go shopping alone, leaves the premises and could be killed. You need policies and procedures to deal with interventions and responses, identifications of risks, and a plan if someone is not in the building. Larger institutional providers provide this and routinely review all policies and procedures, clinical best practices, regulatory and legal compliance, which involves the managerial staff, outside council, and a clinical consultant if you don’t have in-house people.
NREI: In terms of facility design and staffing, what are the biggest risk factors for injuries that lead to lawsuits?
Paul A. Gordon: Architects deal with design, and there’s really not a lot of liability around architectural design. But there are a lot of issues around staffing, which is a constant refrain of the plaintiff’s lawyers. The complaint is that, while providers are trying to save money, understaffing results in less quality of care. In some cases, there are minimum regulatory staffing requirements, but it’s a source of litigation and controversy.
When someone on staff misbehaves and doesn’t use good clinical judgment, the action may be considered intentional harm, reckless or negligence issues. Questions arise about how well the person was screened at hiring, if the employee has a history of problematic behavior or performance, and if he or she has been trained or disciplined. Providers need to offer very good training, evaluation, and discipline programs of employee behavior and capabilities and problems should be well-documented.
NREI: Do you believe there’s a widespread problem with the quality of care at these facilities?
Paul A. Gordon: In general, I think caregivers provide good care and are well-meaning people. You will find some people who aren’t good people and not qualified. In general, people get into this business because they serve with care and love. You also have to take into consideration low pay and some of the national organizations are looking at issues of immigration and the workforce being to some extent dependent on immigrants to fill jobs, and I’m not speaking to illegal immigrants.
There’s an overall concern of the ability to fill jobs with good people. Some are concerned that an anti-immigration policy could adversely impact the workforce in these communities. Restricted visa issues, and numbers of immigrants accepted into the country, create tension. Providers feel like something positive needs to be said about immigrants who make up a significant portion of this workforce and if there are staff shortages combined with making it more difficult for people to immigrate into the U.S., we have a staffing concern. Low wages and the ability to keep the services affordable and to attract good workers continue to be an issue.