The Question: Is There an Assisted Living Lawsuit Here?
I got a call the other day from an attorney with an interesting assisted living wrongful death case. They wanted some help thinking through the law regarding injuries in an assisted living facility, and whether there was a viable assisted living lawsuit.
The Facts (According to the Facility)
Here were the initial facts as presented to the family of the resident:
An elderly woman was in an assisted living facility for a brief period of time, in their “memory care” unit. Without warning, she took off from a caregiver down the hallway and fell, hitting her head. She died from the injuries.
What was the poor assisted living facility supposed to do? Sounds like it was no one’s fault, right? How could there be an assisted living lawsuit here?
Well, if you believed the assisted living facility’s story, maybe that’s right, and there isn’t an assisted living case. But the records the lawyer obtained showed there might be more to the story.
A lot more.
Investigation Reveals Red Flags at the Assisted Living Facility
The assisted living facility (called a “residential care facility” under Ohio law), admitted the woman to their “memory care unit,” which sometimes is just cover for “pay us lots of money even though your loved one probably needs more care than we can provide.” (Remember, they are not nursing homes.) So they knew she had issues with dementia.
It also turns out the woman suffered a fall within days of arriving, and went to the emergency room. Red flag! Maybe you should re-assess the resident’s needs, right?
Most people wouldn’t know it was a fall from the assisted living facility’s records. They “found her on the floor” “sitting” next to a chair. Well, guess what, that’s a fall. Even if she was able to sit up before you got there. (I’ve seen so many falls described this innocently–and usually not reported!)
After the fall and ER visit, she showed strange behavior, like aggression towards staff. Another red flag!
Analyzing Assisted Living Liability
One question would be whether the facility appropriately assessed her in the first place as safe to be in that facility. While Ohio does not regulate assisted living facilities nearly as much as nursing homes (and the federal nursing home regulations do not apply), one of the most important rules is the facility must make sure the resident is safe to be there.
Or, at the very least, should the facility should have re-evaluated whether they could care for her after the fall, and especially after the change in behavior? Something was going on, and she needed attention.
Instead, there was no re-assessment. No change in the care provided. Not even a record of anyone observing her more closely. There weren’t any notes for days!
As any residential care facility should know, transitioning to a new setting can be disorienting or disturbing to an older person, even without dementia. These were big red flags to them that she needed more care / attention, and/or to be in a nursing home.
A lawyer investigating this case should also review her medications, and any recent medication changes. Were issues reported to a physician who might have been able to adjust them? Or—as a large gap in records might suggest—was she just abandoned?
The Rules and Regulations in Assisted Living Lawsuits
You can find the state regulations at issue for assisted living facilities in Ohio Administrative Code section 3701-17-50 through 17-68 (stuff before that is for nursing homes only). You can find the current version of the chapter here.
A case like this would lead me to review / focus on:
- 3701-17-57 (resident agreement requirements)
- 3701-17-58 (assessment requirements)
- 3701-17-59 and 59.1 (services and limited skilled care)
- 3701-17-62 (reporting changes in condition). The reporting requirement is immediate, so that might be a good hook if the facility didn’t report to the family from the first fall, or the aggressive behavior.
- 17-67 (records and reports).
Violating these regulations does not automatically mean you would win an assisted living lawsuit. But they can be evidence the facility was negligent.
And every resident of an Ohio assisted living facility will have the Resident Rights listed in Ohio Revised Code section 3721.13. That includes the right to:
- “a safe . . . living environment”; and
- “adequate and appropriate medical treatment and nursing care and to other ancillary services that comprise necessary and appropriate care consistent with the program for which the resident contracted”
Violating these rights can be the basis of a lawsuit against an assisted living facility. And, under certain circumstances, expose an assisted living facility to punitive damages.
Do You Think There is a Viable Assisted Living Lawsuit Claim?
What do you think, based on the limited facts described? Is there a basis to investigate an assisted living claim? Should there be?
Leave a comment below, and we’ll respond. Or, if you have a different assisted living or nursing home case you’d like to discuss, contact us using the confidential contact form at the bottom of the page.