An assisted living facility is a kind of "halfway house" between a regular retirement home or retirement community and a full-fledged nursing home. It is usually a facility for elderly people, but younger people with disabilities may also be residents -- anyone who needs help with basic activities such as eating, dressing, bathing, going to the bathroom, and mobility. Residents in an assisted living facility are usually no longer able to live independently, but they do not need the intensive sort of supervision that is customarily found in nursing homes.
In this article, we'll explain the legal obligations this kind of facility has when it comes to caring for residents, and we'll look at the kinds of legal issues that can arise if something goes wrong.
The duties of an assisted living facility toward its residents can vary depending on state law and on the specifics spelled out in the contract between the facility and the resident. But in general, an assisted living facility will;
In general, negligence means not exercising reasonable care. So, an assisted living facility can be negligent for failing to act in the manner that a reasonable assisted living facility should act. Alternatively, the facility could be negligent for violating the terms of its contract with the resident or for violating any provision of the state law governing assisted living facilities.
In ordinary negligence cases, the defendant’s actions are compared to those of the average "reasonable person." The jury will usually be instructed that negligence is doing something that a reasonably prudent person would not do under the circumstances -- or failing to do something that a reasonably prudent person would do.
In medical malpractice cases, courts define medical negligence as a health care provider’s failure to exercise the degree of care and skill of the average health care provider who practices the provider’s specialty, taking into account the advances in the profession and resources available to the provider.
So, in medical malpractice cases, the defendant’s conduct is compared to that of other health care providers in the same specialty.
In assisted living facility cases, the standard for judging the defendant’s conduct will depend on 1) your state’s law, and 2) what specific action the defendant is accused of negligently performing.
For example, if an employee of the assisted living facility was a health care provider who was performing a health care-related task -- such as a nurse administering medications -- that will most likely be considered a medical malpractice case. But if the alleged negligence was something unrelated to health care -- such as failing to clean up a slippery substance on the floor -- that will most likely be considered a standard negligence case.
Another important difference between standard negligence cases and medical malpractice cases is that, in medical malpractice cases, the plaintiff’s lawyer in most states has to hire an expert medical witness before filing suit, and the expert witness has to prepare a written report stating how and why the defendant committed malpractice.
Let’s look at some examples of how an assisted living facility can be found to be negligent.
An easy example of standard negligence would be something like failing to shovel the snow on the sidewalks on the assisted living facility’s property. Clearly, the residents have to have walkways free of obstructions. If a resident at such a facility slipped and fell on snow or ice, the facility would almost definitely be found to be negligent.
A harder example of standard negligence would be a situation where a resident slips on a slippery substance on the floor of his/her own apartment. In this situation, whether the facility is negligent would depend on the facility’s policies and the contract between the facility and that particular resident. If, for example, the contract states that the facility will assist the resident in cleaning his/her apartment once per week, then perhaps the facility might not be negligent. It was simply not the facility’s job to clean up spills on the floor as they occurred.
But if the contract and/or the facility’s policies state that the facility will assist the resident in his/her unit as needed, the resident called for assistance in cleaning up the floor, but the facility never sent anyone until after the resident slipped, the facility would very likely be found negligent in that case.
Another example might involve the facility’s duties with respect to health care. If the facility, by policy or contract, is required to monitor a resident’s medication intake, and fails to do so, the facility would almost certainly be found negligent. Because this duty involves a resident’s health care, this type of negligence claim against the facility would most likely give rise to a medical malpractice lawsuit, as opposed to a standard negligence-based personal injury lawsuit.