on the assessment of the patient and the services promised. Liability may exist where a resident was assessed as being at risk for falls, but was not adequately supervised. Also, liability in a wandering case in an ALF may depend on whether the resident was in an independent liv- ing area or was in a locked Alzheimer unit, and whether the resident’s risk for wandering was accurately assessed.
Negligent Hiring, Training, Supervision and Retention
This claim may be easier to establish
in a nursing home setting, because standards of care are more uniform and established. In an ALF setting, it is important to look at the state regulations for staff qualifications and training. Look at the training logs for the staff. Is the required training documented? Was the training done timely? When the employees are deposed, do they answer questions relating to care accurately? Some ALFs hire aides with no education, experience or training. Training is more crucial in an ALF setting where there is an Alzheimer’s or special care unit and the aides are not certified. These residents tend to be the frailest of the frail, and when they are cared for by non- certified, improperly trained staff, this often spells disaster. Even where training is not state-mandated, a negligent hiring and retention claim may exist where the ALF has admitted residents with needs for which that the staff is not trained to care. Hiring individuals with criminal records is also a problem in ALFs. As with nursing homes, understaff-
ing is rampant in ALFs, and is worse than in a nursing home setting, mostly due to lack of state minimum staffing standards.15
Most states are only recently beginning to require awake overnight 16
staff for facilities housing Alzheimer’s residents.16
Whenever evaluating a
claim of understaffing, it is important to realize that ALF staffing hours are not directly comparable to staffing hours in nursing homes. Care aides in ALFs tend to have more housekeeping duties, including laundry, bussing tables, and sweeping the floors. Likewise, staff turnover is higher in ALF than nursing homes,17
because the
pay is lower in ALFs (from $1-$1.50 per hour less). Aides in ALFs also have more housekeeping duties than aides in a nursing home. The management of ALFs also tends to be more complacent about retaining staff who abuse and neglect residents. This complacence is reflective of the high turnover rates and the difficulty in finding replacement staff.
Fraud Fraud in nursing home cases is most
commonly associated with Medicare fraud, which is billing the government for services that were not provided. In the ALF environment, it is usually related to misrepresentations regard- ing the ability of the facility to care for a resident, services promised, and concealment of poor quality of care given to the resident. Frequently, ALFs fraudulently misrepresent their abil- ity to care for patients because most states do not heavily regulate what consumers must be told about services provided and costs for those services.
Contract-based theories of liability
These theories in both ALF and nurs-
ing home litigation include breach of contract claims and claims under a state consumer protection act. These theories of liability are arguably stronger in ALF cases where there are less regulatory standards and the care required is more closely linked to the residency agreement. State consumer protection statutes can be helpful in protecting ALF residents who received misrepresentations in sales pitches and advertising materi- als. In ALFs, the admission contract or residency agreement and service level designations should spell out the ser- vices the resident or patient is to receive. When the resident, who is dependent on staff for assistance in eating, loses weight because the facility is understaffed, the facility has breached the residency agree- ment in which it promised to provide assistance in eating.
Premises Liability This theory of liability is more fre-
quently used in states where the ALFs do not provide medical care. The trend in the country is to hold assisted living facilities liable for conditions that would not be considered dangerous to mentally and physically capable people but are dangerous to the residents of an assisted living facility.18
18
Recent appellate decisions involving prem- ises liability include the following cases: In Klein v. BIA Hotel Corp., 41 Cal.
15
Alabama is one of the few states that has enacted minimum staffing standards for specialty care ALFs. See 14. Ala. Admin. Code r. 420-5-20-.04.
See theNational Center for Assisted Living, Assisted Living Regulatory Review 2007.
http://www.ncal.org/about/2007_reg_re- view.pdf
17 14
See American Assisted Living Nurses Association Scope and Standards for As- sisted Living Nurses,
http://www.alnursing. org/alnursecert/SCOPE_AND_STAN- DARDS_FINAL2_09-19-06.pdf
44
AARP, Direct Care Workers in Long- Term Care Research Report , Bernadette Wright, AARP Public Policy Institute May 2005,
http://www.aarp.org/research/long- termcare/nursinghomes/dd117_workers. html
Trial Reporter
App.4th 1133, 49 Cal.Rptr.2d 60, 96 Cal. Daily Op. Serv. 329, 96 Daily Journal D.A.R. 486 (Cal. App. 2 Dist.,1996), the Court held that the evidence of liability was sufficient to submit to a jury where an 85-year old fell or jumped from the roof of a residential care facility. In Hammack v. Lutheran Social Ser-
vices of Michigan, 211 Mich. App. 1, 535 N.W.2d 215 (Mich.App.,1995), the Court held that the defendants were not entitled to summary judgment or a directed verdict on negligence or premises liability claims where the decedent died after having a seizure in a bathtub.
Summer 2007
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