Aunt Hattie\'s Case Study

¶ … Aunt Hattie and Chester

What might Chester have done to avoid this tragic outcome?

Relatives like Chester want the best for their family and loved ones. However, when Aunt Hattie was no longer able to live completely independently, Chester had little choice but to seek some kind of care or assistance. For people like Hattie who are still capable of caring for themselves to a certain degree, assisted living facilities are often the most appealing option. These facilities offer constant care and supervision, while allowing the individuals to live in the independent and self-sufficient manner that they are used to.

Many assisted living centers lure clients in with things like fireplaces and big-screen television, giving the impression that they are a much better alternative to bare-bones nursing homes. However, the facilities are often less safe than they seem. It is things like staff shortages and insufficient training that place elderly residents at risk. Because the results of these factors are inadequate care, delayed treatment and even death, it is crucial that people fully investigate where they are sending their loved ones to live.

A recent USA TODAY investigation revealed that one in five facilities inspected by regulators in those states was cited for at least one staffing violation, ranging from too few employees on a work shift to not having a certified facility manager on site (McCoy and Appleby, 2004). In many of the facilities investigated, residents were left to care for themselves temporarily because there were no caregivers available. More than one in four was cited at least once for training violations, such as failing to ensure that staffers had proper training in first aid, emergency procedures or client rights.

Karen Love, founder of the Consumer Consortium on Assisted Living, a national advocacy and education group, calls staffing and training "the cornerstone to quality (McCoy and Appleby, 2004)." Without an adequate and trained staff, injuries and deaths may occur.

When a loved one suffers from Alzheimer's or dementia, responsible parties face a very difficult decision. It is often necessary, as in Aunt Hattie's case, to seek an assisted living center. Unfortunately for Hattie and Chester, the facility was ill-prepared to adequately care for Hattie.

Beyond brochures and marketing information, Chester could have found additional information and fully evaluated the facility. It is very important to really assess the contract to determine what the facility is promising and what their guarantee is. In addition, Chester should have taken a good look at the staff levels and the amount of training the staff had. Finally, he should have visited the facility several times, looking at occupied rooms and talking to clients and their families.

The most important element of Chester's decision should have been a solid contract (DeBruhl, 2005). The contract is what controls Hattie's legal rights while in the facility. The contract specifically determines the level of care Hattie is entitled to receive. Because Chester wanted Hattie to have specific access to the piano and baseball games, he should have placed these items in the contract. He could have also made sure that only trained nurses could administer Hattie's medication.

The following checklist of questions has been identified by The American Bar Association Legal Guide for Older Americans as important questions to consider when seeking assisted living. These key questions would have helped Chester to evaluate and compare any types of assisted living arrangement he chose for Hattie.

Questions Regarding the Solvency and Expertise of the Provider

1. Are all levels of care licensed or certified by the state? Chester should have checked with the state office on aging and with the state-licensing agency.

2. How does the facility ensure the quality of its care and services? Is it accredited by any accrediting organization?

Questions Regarding Services and Health Care

1. What services are included in regular fees? If extra services like transportation and cable are offered, how are they delivered?

2. Is there an extra charge for the upkeep of client hygiene and management of personal belongings? Are these services guaranteed?

3. What kind of assessment is done to determine an individual's needs and a plan for addressing those needs? What are the qualifications of the person doing the assessment?

4. Who gives medications? How is it coordinated with your physician? This is a most important subject when we review Hattie's case. It is crucial to fully understand what type of skills the person administering the drugs has.

5. What are the staffing levels? What are the professional qualifications of the staff? It is important to ensure that staff is professionally equipped to do their jobs.

In reality, there was no way that Chester could have completely guaranteed that Hattie would receive the proper care she deserves in the assisted living facility. However, researching the facility would have improved his odds. He seemed to have visited her frequently but he also ignored the warning signs. However, in his defense, having never dealt with this type of situation before, it seems that Chester did his best.

2. What assistance might have been available to Chester, through agencies or other entities?

For the many victims of elder mistreatment, simple daily activities can be a traumatizing ordeal of physical and emotional agony without hope. Elder neglect occurs in all segments of society; however, it is often undetected, and it may go unreported more than any other form of domestic violence. Chester suspected that Hattie was not getting the attention she needed, deserved and paid for, but was sweet-talked by the facility's staff and convinced that the situation would improve. Unfortunately, the situation ended in disaster, with Hattie's life in jeopardy.

Awareness and knowledge of risk factors and suspicious behaviors increase the likelihood of detection. The living situation of elderly patients can be improved by addressing the issues that underlie elderly neglect. Fortunately, there are many resources that provide information on assisted living and the potential problems involved.

Chester had a variety of options for help -- had he realized that he needed it. Many advocacy groups, such as the National Citizen's Coalition for Nursing Home Reform (NCCNHR), fight for the rights of long-term care residents and provides information about legal issues and other long-term care issues. If Chester expressed his concerns to this agency, they probably could have helped him determine if the facility was complying with federal, state and local laws and standards.

The Health Administration Responsibility Project (HARP) is a resource for people seeking to establish the liability of long-term care facilities for the consequences of their decisions. When Chester realized that inadequate staff negatively affected Hattie's care, he could have contacted this agency to determine what his next steps should have been, instead of waiting for the worst to happen.

There are many web sites and research agencies that could have helped Chester learn more about the type of care Hattie was receiving and any warning signs he should look out for. ElderWeb is one such site. The site was built as a research site for professionals and family members seeking information on eldercare and long-term care. It includes links to information on legal, financial, medical, and care issues, as well as policy, research, and statistics.

Eldercare Locator is a national service of the U.S. Administration on Aging. Chester could have searched by state and zip code for referral services that can give you information about senior services in his area and made a more educated decision about where to place Hattie. Carescout.com also offers state-by-state listings of assisted living facilities and other long-term care resources such as assisted living facilities.

3. What liability does "We're There 4 U" face?

While Hattie is somewhat capable of taking care of herself, she still required the care and assistance of the staff at the facility. It is the staff's responsibility to make sure that she is not harmed or injured while in the facility's care. Chester placed her in an assisted living facility because she needed help on a daily basis. "We're There 4 U" faces liability in this situation because they neglected to deliver what they promised and jeopardized Hattie's life by failing to provide an adequate and trained staff.

Neglect is best defined as "the negligent failure of any person having the care or custody of an elder or other dependent adult to exercise a degree of care which any reasonable person in a like position would exercise (Adams, 2005)." There are several different types of assisted living neglect, including failure to provide adequate medication, failure to assist in personal hygiene rituals, and deprivation of social activities. Aunt Hattie was a victim of all these examples.

Unfortunately, assisted living facilities are not as fully regulated by the federal government as nursing homes, and the state regulations in place are often inconsistent and soft when it comes to enforcing industry standards (Downey, 2004). While assisted living facilities are accepting residents with greater medical needs or even cognitive impairment, often even marketing their facilities as including special Alzheimer's disease units, staffing in many of these facilities is often inadequate and fails to meet the needs of these residents.

Neglect in assisted living facilities can result in injuries, malnutrition, poor hygiene, depression, immobility, and even death. For example, when the staff at "We're There 4 U" failed to administer Hattie's medication properly, she ended up in cardiac arrest.

When a facility accepts residents whose needs exceed the faculty's skill or training, it opens itself up to legal liability (Downey, 2004). In most jurisdictions, liability is determined by the state's admission criteria. For example, Virginia regulations do not allow assisted-living facilities to admit or retain patients who need continuous licensed nursing care. May states have legal limitations, which hold facilities liable for mistreatment or neglect of elders.

When evaluating his case, Chester would best be advised to obtain all records from the facility, including the signed contract, which should define the duties the facility agreed to perform.

Most assisted living facilities offer various levels of service, which Chester established when he checked Hattie in. He paid for more than just room, board, and activities. The staff agreed to take care of Hattie's medication administration, and nursing care (assistance with bathing, feeding, and grooming). However, they failed to provide her with the level of care they constantly promised to Chester. As a result, Hattie was unhygienic, unaware that she could watch cable, and eventually severely harmed.

Chester should also submit a Freedom of Information Act (FOIA) request to identify the owner and operator of the facility. The license is available from the local regulatory agency in charge of licensing and inspecting the facility; it often provides information about the scope of services that the facility can legally provide. In this request, Chester should seek access to results of surveys and inspections of the facility conducted by the local department of social services.

Once Chester has the records, he should ask a reliable nursing expert to review the case. Whether or not the facility is liable for what happened to Hattie depends on a few things:

The nature of Hattie's condition upon admission. If she was mentally competent and living independently, contributory negligence and comparative fault defenses may be a challenge.

The nature of the contract and duties the facility agreed to.

Whether the family members make good fact witnesses, appear genuinely outraged by the facility's conduct, and complained about the facility.

Whether the facility had serious staffing shortages or a pattern of neglecting clients.

Whether Hattie suffered a significant injury in the facility that will adversely affect the quality of her life in the future.

Whether Chester has strong witnesses and evidence of neglect.

Under the theory of common law negligence, Chester could sue the facility for a breach of regulatory standards that proximately caused Hattie's stroke. Because assisted living facilities are not traditional health care providers, Chester's case should not be subject to damages caps or discovery limitations such as quality assurance privileges that are seen in medical negligence claims.

Chester could also sue for breach of contract, as he probably signed a contract when Hattie was admitted. The contract probably stated that certain services would be delivered to Hattie -- activities, assistance with daily living, supervision, medical attention -- that were not provided. Because Hattie suffered an injury due to the neglect of the staff, Chester probably has a good case against the facility.

4. To what agencies or entities might the facility be responsible?

Most states today have licensing or certification rules, designed to regulate assisted living as a specific category of health care services (Spore et al., 1997). Existing assisted living regulations in all states include medication-focused rules, but the rules and requirements vary from state to state. In New Mexico, for example, medication management is solely the responsibility of the resident physician. In Kansas, the drug regimen of each resident whose medication is managed by the facility must be reviewed quarterly by a physician or licensed nurse. Draft regulations calling for close pharmacist involvement in assisted living medication management are currently under consideration in some states.