On January 15, a Los Angeles jury awarded $5.5 million to the daughter and guardian of an 89-year-old woman who suffered a devastating fall while residing at AvantGarde Senior Living in Tarzana, California.
Sherrill Phillips had mild dementia when she moved to the facility in June 2018; following a July 2018 fall in which her neck was fractured, Phillips was unable to speak intelligibly, follow instructions or engage in social activities.
The fall, which occurred when a staff member’s attention was diverted while escorting Phillips down a hallway, led to a rapid decline in her condition and severely diminished her capacity to engage in a relationship with her family, her lawyers said. The lawsuit claimed the facility employees lacked proper training and that some of Phillips’ basic care needs were neglected by staff prior to her fall.
“Though the verdict is large, it is not surprising,” said Greg Wideman, Brokerage Manager, Healthcare, Burns & Wilcox, Chicago, Illinois.
“We are starting to see larger judgements, especially in cases where there is negligence,” Wideman said. “Juries are awarding big amounts to send the message that they are not going to tolerate that kind of behavior.”
Incidents such as falls at senior living facilities are not only frequent but they are also often severe, making prevention efforts and risk assessment critical considerations for elder care facilities.
“This case highlights why insurance underwriters are paying closer attention to care providers’ hiring practices and management protocols,” said Maggie Karnick, Senior Underwriter, Professional Liability, Burns & Wilcox, Chicago, Illinois.
Elder abuse cases are on the rise
About 10 percent of Americans age 60 and over have experienced some form of elder abuse, according to the National Council on Aging; however, only 7 percent of abuse cases are reported to authorities. In Canada, where about 7 percent of seniors live in elder care facilities, more than 750,000 citizens reported suffering some form of abuse in 2016.
Reports indicate that elder abuse cases are currently on the rise.
We are starting to see larger judgements, especially in cases where there is negligence. Juries are awarding big amounts to send the message that they are not going to tolerate that kind of behavior.
“The number of nursing homes is increasing; each must be staffed at a certain level but many cannot afford to pay nurses or other staff members’ competitive wages,” Wideman said. “This leads to individuals without proper training being hired and thrown into demanding circumstances right away.”
Elder abuse cases in the news are a persistent reminder of what many consider an epidemic. In North Carolina last month, nursing home staff were caught on camera abusing an 86-year-old patient—including yelling at her and moving her violently—after the woman’s suspicious daughter set up a hidden camera in her room.
An Ohio man who used the same hidden camera tactic to uncover his mother’s abuse by staff at a skilled nursing center in 2018 is now pushing for a state law to allow cameras in all nursing homes. The proposed law is similar to a one that just went into effect in Minnesota at the beginning of this year.
In Pennsylvania, attorneys for a 78-year-old woman recently filed a lawsuit over alleged physical abuse at a nursing home, where she claims she was mistreated by an aide and sustained bruising and broken ribs.
Protections critical for vulnerable clientele, facilities
The potential consequences of elder abuse are severe: physical injury, emotional harm and even death. Seniors who suffer abuse have a 300 percent higher risk of death than those who have not been mistreated and are at risk for lasting emotional damage, including depression. In an elderly patient, even minor injuries can result in extended hospital stays.
“Because senior citizens are already vulnerable, it might not take much to change someone’s quality of life. It could be one small event,” Karnick said.
The Centers for Disease Control and Prevention reports about $50 billion is spent annually on non-fatal fall injuries among seniors and about $754 million is spent on fatal falls.
Professional Liability Insurance is a necessity for any senior living facility, Karnick emphasized, adding that facilities should invest in coverage for cases of abuse and molestation. A separate endorsement may be needed for such coverage, she explained, since many policies exclude abuse.
“If an abuse claim is made and there is no criminal guilt by the employee, the insured will have coverage for the cost of defense and potentially settlement,” Karnick explained, noting that criminal acts are always excluded from coverage.
Without coverage for incidents of abuse or neglect, recovering from a significant loss may not be financially possible and could easily put a senior living facility out of business, experts say.
Importance of training and procedures
With incident costs and jury verdicts increasing, many senior living facilities are making imprudent decisions about their Professional Liability Insurance coverage, Wideman said.
“I have seen facilities forced to close their doors or opt for a lower-limit coverage, which may not cover a claim involving abuse or neglect,” said Wideman.
In May of last year, a faulty elevator at a senior apartment complex in Montrose, California left many of its 85 senior residents trapped in their upper-level apartments for at least a week, prompting a lawsuit from the city.
Such conditions could put residents at tremendous risk, particularly in case of fire, Karnick pointed out. Facilities should have a clear emergency response plan, including an evacuation plan for instances such as this. Insureds should look for Evacuation Expense coverage to be included in their Professional Liability policies. Evacuation Expense can provide coverage for transporting, housing and providing meals to residents who have to be evacuated.
In 2018, a U.S. Government Accountability Office report found that more oversight of assisted-living facilities and the way they report critical incidents such as abuse and neglect is needed. Well considered hiring and training practices, management protocols and facility procedures are key to both preventing incidents and responding to them appropriately.
“Senior living facilities need to have clear, written abuse prevention policies, reporting policies and procedures in place, and training for staff,” Karnick said, emphasizing the importance of reporting all incidents. “Abuse needs to be properly reported so that those who commit such acts are flagged when potential employers run federal and state background checks.”
The way a senior living facility assesses patients and trains employees plays a large part in its risk profile and ability to obtain appropriate Professional Liability Insurance coverage, Karnick said. Facilities should have trained employees who are capable of completing thorough patient assessments to determine and address fall and elopement risks and prevent pressure sores.
Professional risk management services can be a helpful complement to a senior living facility’s Professional Liability Insurance, Wideman added.
“Risk managers can help get you on the right path to running your facility in the correct way while controlling losses,” he said. “Facilities should seek out those carriers that understand and have experience with senior living.”
“The elderly and their families entrust senior living facilities to take care of them and see them through a difficult transition; abuse should be the last thing on their minds,” Wideman said. “Clients entrust facilities with providing the best quality of care.”
Additionally, consumers should feel empowered to ask tough questions when considering a senior living facility for a loved one. “Do not be afraid to continue asking questions,” Karnick said.
“Most providers do care and are doing the best that they can, however despite their best efforts things can happen and claims arise,” she emphasized. “That is why Professional Liability Insurance is there.”