11.27.18. PAL Blog pic


Protecting Our Elders: PA Supreme Court Rules that State Attorney General’s Claims Under Consumer Protection Law May Proceed Against Dozens of Nursing Homes

By:       Pamela A. Lee, Esquire

All people deserve to live their lives with dignity and respect.  But people with mental or physical disabilities –especially our elderly—are particularly vulnerable because they are often unable or unwilling to communicate neglect or abuse at the hands of their caregivers.  The Office of Attorney General (“OAG”) sought to hold dozens of nursing homes financially accountable for allegedly misleading the public about basic services that they claimed to provide, but which the OAG asserted were not provided, to the nursing home residents.

In Commonwealth of Pennsylvania v. Golden Gate National Senior Care LLC, et al., the Pennsylvania Supreme Court ruled that the OAG could proceed with its suit against dozens of nursing homes for allegedly violating the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). The UTPCPL provides that acts of “unfair methods of competition” and “unfair or deceptive acts or practices” in the conduct of any trade or commerce are unlawful.

The OAG claimed that residents routinely waited hours for food, assistance with toileting, change of dirty bed linens and other basic care needs, and sometimes were forced to do without them entirely.  Therefore, the OAG alleged in its complaint that the defendant nursing homes violated the UTPCPL by (a) making materially misleading statements about basic care and quality of care that they provided to residents through deceptive advertisements and marketing; (b) knowingly failing to provide the level of care they advertised for or promised in the residents’ individualized care plans by purposely understaffing facilities; and (c) billing for services not provided, including residents who received Medicaid and Medicare.

The Commonwealth Court – the lower appeals court – had dismissed the OAG’s claims against the nursing homes as a matter of law because it had concluded that: (a) the nursing homes’ advertisement and marketing statements were so broad, vague or merely expressive of intent that they constituted “puffery” and therefore did not violate the UTPCPL; (b) residents’ care plans made to individual residents did not constitute advertising and did not impact a purchasing decision so therefore did not violate UTPCPL; (c) the OAG’s complaint failed to plead with sufficient specificity because it did not identify specific bills or particular resident’s care plan in the complaint; and (d) the Commonwealth is not eligible to receive restoration (e.g. money) for violations under the UTPCPL because the Commonwealth, as a political subdivision, is not a “person of interest.”

The OAG appealed to the Pennsylvania Supreme Court, which held that the dismissal of the UTPCPL claims was improper.  First, the Pennsylvania Supreme Court addressed whether the nursing homes’ marketing and advertisement statements constituted “puffery” and hesitated to conclude “that consumers seeking a nursing home would necessarily find statements promising to provide food, water, and clean linens to be hyperbolic in any respect, or to be vague statements of optimism or intent.”  The Pennsylvania Supreme Court found that “for residents of nursing homes, many of whom are physically compromised and require assistance with day-to-day living activities, regular access to these items is essential, and there is no reason to think that a consumer would not take these statements seriously” and held that the Commonwealth Court’s finding that the statements were puffery as a matter of law was improper.

Next, the Pennsylvania Supreme Court addressed the Commonwealth Court’s dismissal on the basis that patient assessments, care plans and billing statements were not advertisements and could not have impacted a purchasing decision.  Specifically, the Pennsylvania Supreme Court noted that the Commonwealth Court had failed to appreciate that sections of the UTPCPL encompass conduct other than advertising .  After conducting a statutory construction analysis, the Pennsylvania Supreme Court held that some of the UTPCPL’s definitions of “unfair methods of competition” and “unfair or deceptive acts or practices” are not limited to claims based on advertising. Thus, the Commonwealth Court had erred by dismissing the OAG’s claims on this basis.

Regarding the Commonwealth Court’s finding that the OAG’s complaint failed to plead with sufficient specificity because it did not identify specific bills or particular resident’s care plan in the complaint, the Pennsylvania Supreme Court noted that although the Pennsylvania Rules of Civil Procedure require the pleading of all material facts upon which the claims are based, “there is no requirement to plead the evidence upon which the pleader will rely to establish those facts.”  After reading the complaint as a whole, the Pennsylvania Supreme Court held that the complaint adequately details the nature of the claims which permitted the defendants to prepare a defense.

Finally, because the UTPCPL permits a court to direct a defendant to restore to any “person of interest” any money or property which a defendant may have acquired through a violation of the UTPCPL, the Pennsylvania Supreme Court held that the Commonwealth, as a political subdivision, is a “person of interest” that may seek monetary remedies under the act.

How does this ruling affect you and your loved ones?  This ruling allows the OAG to proceed with a cause of action that, if proved, could stop nursing home neglect before a resident suffers permanent or serious injury.  The law provides causes of action against violators of the law to the Commonwealth for injunctive relief (e.g. to stop the nursing homes from the unlawful conduct) and to restore any money or property acquired by the unlawful conduct.  The law also provides a cause of action to private persons who suffer any ascertainable loss of money or property as a result of the unlawful conduct.

Nursing home neglect usually occurs through the failure of a facility or staff to take adequate precautions or provide proper attention, despite the caregiver’s duty to do so.  Neglect may take different forms. For example, a resident’s or patient’s basic needs may not be fulfilled, such as food, water and nutrition.  A resident’s medical needs may not be met such as when a nursing home facility fails to provide proper medication on time or provide proper attention or take adequate precautions to protect against the development of bed sores, infections, or serious falls.  A patient’s personal care may not be met such as cleaning soiled laundry or bathing the resident.

Unfortunately, most neglect and abuse of elderly people of those with mental and physical disabilities remain unreported.  By educating families of the signs of neglect or abuse, and explaining your legal recourse, we can help you stop the neglect or abuse of your loved ones.

Our attorneys at the Law Firm of DiOrio & Sereni, LLP will ask the tough questions and get you the right answers.  If a lawsuit is necessary and warranted, we will help you recover full and fair compensation for all the harm and losses caused by the neglect or abuse of a nursing care or long-term care facility, including medical expenses, physical pain, and emotional suffering.

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The Law Firm of DiOrio & Sereni, LLP, is located in Media, PA and serves clients in and around Media, Glen Riddle Lima, Brookhaven, Wallingford, Newtown Square, Lenni, Springfield, Swarthmore, Chester, Aston, Bryn Mawr, Morton, Woodlyn, Broomall, Gradyville, Folsom, Chester Heights, Crum Lynne, Glen Mills, Marcus Hook, Ridley Park, Drexel Hill, Marple, Bethel, Garnet Valley, Chadds Ford Concord, Chester County, Delaware County, Montgomery County, Philadelphia County.


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