In Continuing Care or Life Plan Communities, Do Operators Face Liability for “Failing” to Transfer Residents to Higher Levels of Care?

Just as spring is finally seeming to arrive in the Mid-Atlantic region and I’m catching up on non-classroom projects, I realized I hadn’t fully understood the potential legal issues in a tragic fact pattern from last winter, when an 85 year old women died after being trapped overnight outside her home near Philadelphia in March.  The legal issues are outlined in a suit filed against the CCRC where she was living in an “independent living” unit.  The lawsuit claims her “caregivers should have known” that she needed more care, pointing to the contractual language that permitted the facility to assess and transfer her to a more  supervised setting as her care needs increased.  From the Philadelphia Inquirer on February 9, 2018 :    

Her son, Blake Rowe, a drug company scientist, has filed suit against Shannondell at Valley Forge in Audubon and its security company, Universal Protection Service LLC, claiming that they should have done more to protect his mother. She had been allowed to stay in an independent-living apartment after Shannondell knew she had a tendency to become confused and wander aimlessly, the suit says.

 

“I put my trust in them. They said they would do an assessment they never did,” said Rowe, who got the “horrible” news that his mother was in the hospital as his plane landed in Florida for his honeymoon.  As for the security company, he said, “If they were doing their rounds, someone would not be at a door for five hours freezing to death.”

Ironically, I often hear from family members protesting the compelled transition of a resident to a higher level of care, as the family members may disagree more help is needed, or feel the help can be provided adequately “in” the independent living unit.  The Inquirer article summarizes the dilemma for operators and families:  

The Hinds case also illustrates a trend in senior housing — at all levels of care, including independent living, residents are older and have more health problems than in the past — with safety implications that may surprise families. Most seniors want to be as independent as they can for as long as they can.  Families shopping for senior apartments may want to look beyond the quality of the food or beauty of the grounds and ask what will happen when a loved one declines:  Were your buildings and security designed with dementia in mind?  Whose job is it — the family’s or the facility’s — to start the conversation when a resident needs more help?

For more on the “Hinds” case, see His Elderly Mother Wandered Out Into the Cold and Died.  Whose Fault Was It?