in medical malpractice case only where a patient knowingly passed on conventional medical treatment to undergo medical treatment that did not conform to accepted medical standards, such as ingesting non-FDA approved medication).
In Williamson by Williamson v. Provi-
dent Group, Inc., 250 Neb. 553, 550 N.W.2d 338 (Neb.1996), the Court held that there was insufficient evidence of assumption of the risk where a resident of an assisted living facility fell on gravel while on an outing with the facility.
Arbitration Clauses Nursing homes are not alone in try-
ing to limit jury verdicts by including arbitration clauses in their residency agreements. Although very few ALF cases have made their way into published appellate opinions, it appears as though the trend is that courts are enforcing the clauses.19
Pre-suit Requirements In Emeritus Corp. v. Highsmith, 211
S.W.3d 321 (Tex.App.-San Antonio, 2006), the Court dismissed plaintiff ’s claims for failure to file a timely pre- suit expert report. In an unreported opinion, the Court in Fallo v. McLean Ass’n, Inc., not Reported in A.2d, 2001 WL 950911 (Conn. Super. 2001), 30 Conn. L. Rptr. 217 (citing, Badrigian v. Elmcrest Psychiatric Institute, 6 Conn. App. 383, 386-87, 505 A.2d 741 (1986)), held that a certificate of an expert was not required in a case where a resident of an assisted living facility fell down the stairs because the alleged negli- gent supervision did not occur during the provision of medical treatment, and thus sounded in ordinary negli- gence and not in medical malpractice.
Summary Judgment Warner v. Regent Assisted Living, 132
Wash. App. 126, 130 P.3d 865 (Wash.
App. Div. 1, 2006), in which the Court reversed a defense summary judgment, holding that there was sufficient evi- dence of abuse and neglect to create a jury question as to pain and suffering under the Washington Vulnerable Adult Statute. The abuse and neglect included leaving the resident in urine and feces, medications not being given, Nursing home litigation provides
an excellent basic education for ALF litigation. Be aware of the differences, and consult with nursing and medical experts with ALF experience for the best outcome. ALFs are increasingly becom- ing a more serious threat to the health and safety of frail elders than even nurs- ing homes. Litigation appears to be the only way most negligent ALFs are held accountable for harming residents. Hold- ing ALFs responsible for injuring helpless senior citizens advances the twin goals of compensating victims and improving the quality of care for seniors. n
About the Author
Lisa J. Sansone graduated magna cum laude from the University of Baltimore School of Law in 1992. She was an assis- tant editor of the University of Baltimore Law Review. In 1992, she was a law clerk to the Honorable Rosalyn B. Bell on the Court of Special Appeals of Maryland. In 1994, she opened the Law Office of Lisa J. Sansone, representing plaintiffs in complex civil litigation matters. Since 1998, Ms. Sansone has focused her prac- tice on the representation of victims of nursing home abuse and neglect. She is a member of the Maryland Trial Lawyers Association and is the past chair of the Nursing Home Litigation Section. She is also a member of the American As- sociation for Justice. She has lectured nationally on the topic of assisted living facilities. She is on the Board of Directors of Lighthouse Inc., a Maryland Youth Services Bureau organization providing mental health services to children with special needs and their families.
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Trial Reporter
Summer 2007
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