• Firm History
• Lawyer Profiles
• Areas of Practice
• Recent Settlements
• General Q&A

By Jeff Boyd

As the "baby boomer" generation ages, various cottage industries have evolved to provide benefits and services directly targeted and marketed at the aging and elderly. As we know, nursing homes have been the topic of much regulation and litigation over the past decade. However, there is a niche that has been spawned of late that endeavors to fill the gap between self support and/or home health and the nursing home. These facilities are known as Assisted Living Care Facilities (ALF's). If one picks up the brochures and marketing materials for these facilities the appearance is wonderful. Depicted in these materials are well groomed, happy and social people undertaking activities that are fun for all. While this may be the case for some, there exist at these facilities another category of residents that have no business being accepted by, or remaining in, ALF's. The reason that this second class of residents exist is money. Assisted Living Care Facilities are by and large self pay operations which do not rely on insurance reimbursements to pay the bills. That is, the residents or their families are paying thousands of dollars a month to be provided with the lifestyle depicted in the brochure. Very few people realize that the State of Tennessee regulates who may be admitted to an ALF and when patients must be transferred to a higher skilled facility. It is in these cases where we believe liability exists.

ALF's are defined by T.C.A. §68-11-201(4). The residents that may be admitted by these facilities are outlined in T.C.A. §68-11-201(5). This section states that a resident will be transferred to a licensed hospital or licensed nursing home when, "in the opinion of the resident's treating physician, such services available to such resident in the assisted-care living facility as aforesaid are no longer are adequate for the care of the resident." If this alone were the standard, it might make the cases tough to take on given that the medical opinion of a doctor would be difficult for a jury to look back on and question especially when they are trying to determine whether a particular facility was equipped to handle the patient. However, the Act gives a specific laundry list of situations where an ALF "shall not admit nor permit the continued stay" of a patient. Some of the itemized conditions are: 1) requires physical or chemical restraints; 2) person is not able to communicate such person's needs; 3) the person requires intravenous or daily intramuscular injections or intravenous feedings; 4) the person requires sterile wound care or 5) the person requires treatment of extensive stage 3 or 4 decubitus ulcer or exfoliative dermatitis. There are other conditions itemized in the statute but these are the most prevalent. The above enumerated conditions can be documented by medical records from before the patient's admission as well as nursing and other medical records generated during the stay. More importantly, we are taking the approach that liability in these cases are strictly based on the negligence standard instead of a violation of the standard of care applicable to doctors and nurses as required in nursing home cases. The investigation prior to taking the case merely involves determining whether the resident fell within the application of the statute and if so, then any damages that flow from the patients not being transferred may be the legal responsibility of the ALF.

Another prong of attack against ALF's is their admission contracts. Each of these facilities have admission contracts that contain descriptions of the "base level" of care and "advanced level" of care and charge the resident accordingly. The itemized services to be provided under the contracts can be conclusively established as breached by the post admission medical records. For example, most of the contracts I have seen contain a provision regarding "three nutritious meals daily." If a resident dies from malnutrition, then it is obvious that the resident did not receive three nutritious meals daily or the ALF personnel were not paying enough attention to know that the resident needed to be transferred to a nursing home. Significant decline in weight following admission to the ALF is a red flag. Decubitus ulcers may also result from malnutrition or dehydration. Under these facts, you have a prima facie breach of contract action. Again, the contracts executed by or on behalf of the residents contain material that can be important to your case when compared to the services actually rendered by the nursing and medical staff at the facility.

Two more approaches to take when pursuing these cases are violations of the Consumer Protection Act and the Adult Protection Act. When one compares the facilities "goods" as advertised and marketed to the public with what is actually being provided, it is arguable that the Consumer Protection Act provides relief. This approach is novel as applied to a medical type facility as opposed to retail establishment but we are fleshing out the applicability. The Adult Protection Act specifically applies where there is a "deprivation of services by a caretaker which are necessary to maintain the health and welfare of an adult or a situation in which an adult is unable to provide or obtain the services which are necessary to maintain that person's health or welfare."


Given that this is a relatively new focus of the trial bar, exploration of opportunities is a fluid and ongoing process. Suffice it to say, where the victims of these ALF's are paying the money directly from their own pockets in combination with the fact that these facilities know or should know that they cannot admit these patients, the potential for recovery should be sizeable given the successes in the nursing home arena. We currently have two ALF cases filed and a third under review. None have gone to trial yet.
T.C.A. §68-11-201(5)(A).
Id.
T.C.A. §47-18-101 et. seq.
T.C.A. §71-6-101 et. seq.
See T.C.A §71-6-102(1).