Publication Date: February 2011

Volume: 46-6

Author: Roger J. Leslie

Categories: Nursing Homes, Disability, Legislation and Legislature

Washington legislators enacted the Abuse of Vulnerable Adults Statute (VAS) (RCW 74.34.005 et seq.) to protect elderly and disabled residents of nursing homes. The statute helps counteract a power imbalance between helpless elderly residents and powerful corporate nursing homes. The statute provides for quick action by Washington courts and by the Washington Department of Social and Health Services (DSHS) in response to complaints from interested persons regarding the safety of a vulnerable adult.

 

In addition to the criminal and administrative protections for vulnerable adults, the statute provides for civil actions for damages based on the neglect, abandonment, abuse, or financial exploitation of vulnerable persons. RCW 74.34.200. The Legislature included a requirement for attorneys’ fees and costs to a prevailing plaintiff as added incentive for plaintiffs’ attorneys to pursue damages on behalf of people in the last years of their lives. The following discussion is focused on civil claims for damages available under the VAS.

 

A vulnerable adult is a resident in a DSHS licensed facility or a person who receives home health care from DSHS licensed individuals. “Facilities” are nursing homes, boarding homes, adult family homes, soldiers’ homes, residential habilitation centers, and any other facility licensed by DSHS. A vulnerable adult must meet one or any combination of the criteria that follow:

 

1.    60 years of age or older who has the functional, mental, or physical inability to care for himself or herself, or

2.    Found incapacitated under RCW 11.88 (the guardianship statute), or

3.    Who is developmentally disabled under RCW 71A.10.020, or

4.    Admitted to any DSHS licensed facility, or

5.    Receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW, or

6.    Receiving services from an individual provider who is under contract by DSHS under RCW 74.09 or 74.39A (medical assistance statutes).

 

Under the statute, some of the terms have technical meanings. An “individual provider” is defined as someone under contract to DSHS to provide care in the home. A “facility” is defined as one of the healthcare entities licensed by DSHS.

 

The civil action survives the death of a vulnerable adult. RCW 74.34.210. The executor or administrator of the deceased’s estate may recover all damages for the benefit of the deceased person’s statutory beneficiaries under RCW 4.20.020 or, if there are no statutory beneficiaries, economic damages may be recovered for the deceased person’s estate.

 

At first blush, the word “abuse” implies an overt physical act, but under the Abuse of Vulnerable Adults Statute, simple neglect that causes injuries, pain and suffering, and loss of property is actionable. Abandonment, abuse, financial exploitation, and neglect are all bases for a lawsuit. Neglect is the most commonly employed basis for a lawsuit, but where there is neglect there is often an abandonment claim. A nursing home that neglects to provide adequate nutrition or health care to a vulnerable adult is liable under the statute for abandonment as well for leaving “ . . . the person without the means or ability to obtain necessary food, clothing, shelter, or health care.” These terms are defined in RCW 74.34.020.

 

Neglect under the statute has two alternative definitions. First, neglect is “a pattern of conduct or inaction by a person or entity with a duty of care that fails to provide the goods and services that maintain physical or mental health of a vulnerable adult, or that fails to avoid or prevent physical or mental harm or pain to a vulnerable adult.” Or second, neglect is “an act or omission that demonstrates a serious disregard of consequences of such a magnitude as to constitute a clear and present danger to the vulnerable adult’s health, welfare, or safety.”

 

Under the first definition of neglect, the plaintiff must prove that the defendant engaged in a pattern of conduct or inaction. The statute does not define what establishes a pattern and over what time course the conduct or inaction must occur. Courts generally define these terms liberally to be consistent with the intent of the legislature. Warner v. Regent Assisted Living, 132 Wn.App. 126 (Div. I, 2006). Analogous provisions in criminal statutes define a pattern of conduct as “a series of acts over a period of time, however short” RCW 10.14.020 (Harassment statute) or “two or more actions or incidents closely related in time.” Ohio R.C. 2903.211 (stalking statute). The language that describes the conduct that triggers a VAS claim closely tracks the language of state and federal statutes regulating nursing home care.

 

Defendant nursing homes may assert that a plaintiff has a high burden of proof under the VAS and that the VAS claim is susceptible to dismissal on summary judgment. This position is contrary to the decisions in Conrad and Warner that were influenced by the primary legislative intent behind the statute, which was to protect vulnerable adults.

 

Proving a pattern of conduct or inaction is not usually difficult in nursing home cases. Most nursing home cases will result from multiple acts or omissions. A resident does not develop a stage 4 decubitus ulcer, become dehydrated or malnourished, or die of an intestinal blockage without multiple opportunities for the nursing home staff to observe and correct the problem. Each day, a resident is cared for by three shifts of nurses and nursing assistants. The resident who continues to be dehydrated or malnourished is neglected three times a day, which establishes a pattern of conduct or inaction.

 

Defendants may argue or imply that the pattern of conduct or inaction requires proof of general conduct in the facility. Under the plain language of the statute, the pattern of conduct or inaction applies to care provided to “a vulnerable adult” and does not require proof of a generalized facility-wide pattern of conduct.

 

The second type of neglect involves an act or omission that constitutes a clear and present danger to the vulnerable adult. Usually, a finding of an act or omission by a person with a duty of care for a dependent person that creates a clear and present danger to the vulnerable adult will fulfill the “serious disregard of consequences” element of the statutory neglect. A caregiver who left several vulnerable adults completely unattended while he went to a store to get headache medication met the statutory neglect definition. Kabbae v. DSHS, 144 Wn.App. 432 (Div. 1, 2008).

 

Neglect under the VAS is not the same as the common law tort of negligence. Conrad v. Alderwood Manor, 119 Wn.App. 275 (Div 3, 2003). 93 year old Enid Conrad suffered a fractured leg and a fractured neck while recovering from a stroke at Alderwood Manor. A jury returned a verdict against Alderwood for neglect under the VAS and also for negligence. The verdict was in excess of $4 million. On appeal, the Division 3 Court held that whether a plaintiff may recover for both common law negligence and for VAS statutory neglect is a question for the jury. Id. at 291.

 

It is generally more difficult for a plaintiff to prevail in a medical negligence claim than in a claim against a nursing home corporation that has created a danger to residents by under staffing the facility and by under training the staff. In practice, I rarely bring a lawsuit against a nurse or doctor where they are agents for a corporate nursing home. A jury or judge is usually more receptive to a complaint of neglect caused by corporate greed rather than a complaint that a doctor or nurse was negligent.

 

A nursing home case does not necessarily need expert testimony. Warner v. Regent Assisted Living, 132 Wn.App. 126 (Div. I, 2006). In Warner, the Division I court concluded that the jury would know from common experience that a resident who repeatedly was left in a soiled bed had experienced pain and suffering as a result. Mr. Warner was so humiliated by his condition that he did not want his daughter to clean up the mess for him. Cases of humiliation may not have great case value; however, the Warner case is the type that benefits most from the VAS requirement for attorneys fees and costs.

 

The legislative findings in the statute describe that a vulnerable adult may be subjected to neglect by “a family member, care provider, or other person who has a relationship with the vulnerable adult.” RCW 74.34.005. However, the civil cause of action for damages under the VAS is limited to defendants who are a entities licensed by DSHS, employees of the entity, or an individual contracted by DSHS.

 

This action shall be available where the defendant is or was a corporation, trust, unincorporated association, partnership, administrator, employee, agent, officer, partner, or director of a facility, or of a home health, hospice, or home care agency licensed or required to be licensed under chapter 70.127 RCW,

as now or subsequently designated, or an individual provider. RCW 74.34.200(1)(a).

 

Under the statute, a family physician who gives negligent advice in response to a telephone call from a nursing home regarding a resident, is not subject to civil damages under the VAS. RCW 74.34.200. The physician is licensed by the Department of Health and, unless he is under contract with DSHS, he is not included as a possible defendant in a VAS case.

 

A closer question arises when a medical director for a nursing home provides negligent care. Medical directors may characterize themselves as independent contractors but they often satisfy the factors that prove either actual or apparent agency. Adamski v. Tacoma General Hosp., 20 Wn.App. 98 (Div. 2, 1978). The consideration from Adamski that is most relevant to medical directors is that they provide an inherent function of the nursing home. The State Administrative Code mandates that a nursing home must designate a physician to serve as medical director and he or she is responsible for implementation of resident care policies and the coordination of medical care. WAC 388-97-1700. A nursing home will have a difficult time arguing that a titled member of their staff is not their agent. The agent status makes the nursing home subject to a civil claim under the VAS under the theory of respondeat superior for the actions of its medical director. You will generally find the medical director listed prominently on the nursing home’s web site.

 

A prevailing plaintiff is entitled to actual damages and attorney’s fee and costs. The provision for attorney’s fee and costs is important in light of the often limited economic damages for the injury or death of a person in their last years or months of life. High judgments are not unheard of in elder care cases (See Conrad v. Alderwood Manor, 119 Wn.App. 275 (2003)); however, generally large plaintiffs’ verdicts are rare. The provision for attorney’s fee and costs is added incentive for plaintiff’s attorneys to take elder cases.

 

The provision of attorney’s fees and costs is not discretionary. “In an action brought under this section, a prevailing plaintiff shall be awarded his or her actual damages, together with the costs of the suit, including a reasonable attorney’s fee.” RCW 74.34.200(3).

 

Plaintiffs’ attorneys should remember to keep a time record of their work on the case to support their demand for attorneys’ fees. I record my time in individual spreadsheets for each case, but software is available that is dedicated for this purpose.

 

As a practical matter, remember to plead the statute with attorney’s fees and costs.

 

8. ATTORNEY’S FEES AND COSTS

 

8.1 Plaintiff was a vulnerable adult protected under RCW 74.34.200 who suffered abuse and neglect while residing at Defendant’s facility and suffered injuries, pain and suffering as a result.

 

8.2 Plaintiff has incurred and will continue to incur costs and attorney’s fees as a result of Defendant’s abuse and neglect.

 

In the coming years, we can anticipate that corporate interests will make unending efforts to undercut the civil justice system, including those corporations that profit from ownership of nursing home facilities nationwide. The VAS gives vulnerable residents of nursing homes and their families power to demand competent care from the unresponsive corporate owners. The VAS must be maintained because it is the best protection the elderly have against the corporate business model that places profits before patients. Despite the legal fiction that corporations are individuals, corporations are not human. They are not humane.

 

 

 

Roger Leslie is a WSAJ EAGLE member accepting referrals in the areas of medical negligence, nursing home negligence, and other personal injury cases.