Plaintiffs’ attorneys increasingly are looking at assisted living communities as potential lawsuit targets, Neville Bilimoria, a partner with the health law practice group of Duane Morris LLP in Chicago, told those attending a Tuesday educational session at the American Health Care Association / National Center for Assisted Living annual meeting in Nashville, TN.
“The number of assisted living cases has eclipsed the number of nursing home negligence cases in the county I’m in, which is pretty remarkable,” he said.
Across the country, a similar shift is happening for several reasons, Bilimoria said.
The very characteristics that the assisted living sector promotes to differentiate itself from skilled nursing — resident choice, dignity and privacy — make it so attractive to lawyers, he said.
“These are all awesome things that we promote,” he said. “It’s also exactly the same terms that plaintiffs’ attorneys will use against you when you fail to offer that choice, fail to offer that dignity and privacy. So we’ve got to keep an eye out for that.”
The changing nature of assisted living — serving residents who have higher activities of daily living assistance and acuity needs — also enables plaintiffs’ attorneys to put into practice the lessons they’re learned from bringing lawsuits against nursing homes, Bilimoria said.
“The plaintiffs’ [attorneys] use one theme in all of their nursing home negligence cases, and that translates to the theme that they use for assisted living: The home puts profits over people,” he said. “And they hammer that message home because it resonates with juries.”
Common claims, he said, involve accusations of failure to transfer to a more acute setting, medication administration errors, improper placement/wrongful resident admissions, falls, abuse, corporate negligence, elopement/wandering and nonadherence with facility compliance and procedures.
Where do these cases often begin? In the files of your state or local department of health, where attorneys find survey reports.
“You get a lot of good information about negligent care in those public documents,” Bilimoria said. “Don’t kid yourself for a second. Plaintiffs[‘ attorneys] scour surveys, survey reports of our assisted living facilities.”
The top 10 deficiencies in those reports, he said, involve medication administration (the top deficiency), resident care, the maintenance and building code, ongoing resident assessment, resident admission requirements, staff training, food service, administrative record-keeping, emergency preparedness and abuse/neglect reporting/investigation.
“Each one of those translates into a potential lawsuit,” Bilimoria said. “That’s what plaintiffs have learned from the skilled nursing facility litigation.”