An assisted living facility in Shrewsbury, Massachusetts, is facing a lawsuit from the estate of a resident over concerns about the quality of care she received before her tragic passing.
The wrongful death lawsuit, filed on January 3, alleges that the woman fell in her bedroom at The Residence at Orchard Grove and was left on the floor for at least 18 hours after the incident. The lawsuit claims that the facility bears partial responsibility for her death in 2022 and accuses it of falsifying records regarding the timeline of when staff members checked on her.
When the 89-year-old woman was brought to the emergency room, hospital staff reportedly indicated that she must have been on the floor for more than 24 hours, and they noticed pressure wounds, cuts and bruises on her body. While facility records stated the woman was seen by staff multiple times per day, the lawsuit alleges staff had not seen the resident in about two days when she was found and that nurses were “grossly negligent” in their direct care, MassLive reported.
“What a tragic story. My condolences go out to the family of the deceased,” said Lily Chetosky, Broker, Professional Liability, Burns & Wilcox, Chicago, Illinois. “Unfortunately, this is not an uncommon story on multiple accounts. We are seeing claims regarding different issues across the board with elder care and residential facilities.”
Legal fees, court filings, expert witnesses, and medical retrieval fees all certainly get to be expensive, especially when cases are open for years.
A spokesperson for the assisted living company offered condolences to the family but declined to comment on the pending litigation, news outlets reported. Claims of negligence can be covered by a facility’s Medical Professional Liability Insurance, also referred to as Medical Malpractice Insurance.
“This type of negligence is all too common, and this time it is likely to be quite costly for this facility,” said Erin Pritchett, Broker, Professional Liability, Burns & Wilcox, Detroit/Farmington Hills, Michigan. “Individuals trust these facilities to take care of their loved ones, and it is disappointing and so unfortunate when tragedies like this take place.”
Wrongful death lawsuits may exceed policy limits
In the lawsuit, the woman’s estate is seeking a jury trial to “punish” the defendant for the wrongful death, as well as reparations for her suffering. “According to the article, the plaintiffs allege that care plans were not followed — they were falsely documented — and unfortunately it may have cost a woman her life,” Pritchett said.
When a facility faces allegations of negligence in a patient’s care, its Medical Professional Liability Insurance can cover the cost of legal defense, settlements or judgment amounts, regulatory fines and penalties, and more. “Legal fees, court filings, expert witnesses, and medical retrieval fees all certainly get to be expensive, especially when cases are open for years,” Chetosky explained.
Unfortunately, this is not an uncommon story on multiple accounts. We are seeing claims regarding different issues across the board with elder care and residential facilities.
The policy may also cover pain and suffering, funeral and burial expenses, and punitive damages, Pritchett said. “Being awarded punitive damages is a bit rarer, but they are an option if the entity or individual sued for wrongful death acted intentionally or negligently in connection with the death,” she said. “Wrongful death suits can exceed policy limits of well over $1 million.”
When buying Medical Professional Liability Insurance, facilities will typically be offered options for defense costs inside or outside of the limits of liability, Chetosky added. They may also need Excess Liability Insurance, Commercial General Liability (CGL) Insurance, Commercial Property Insurance, and Cyber & Privacy Liability Insurance, among other policies.
As owners of these facilities, you cannot be present every second of every day. You can have all of the necessary risk management procedures in place … and litigation could still find you.
Assisted living facilities should have strong policies in place to monitor the quality of care being provided, but not all incidents can be prevented, Pritchett said. “Insurance is a must,” she said. “As owners of these facilities, you cannot be present every second of every day. You can have all of the necessary risk management procedures in place including resident screening, contracts, continuing education, resident agreements, and a safe environment, and you can do all the due diligence in the world during the hiring process to ensure you have the most capable staff, and litigation could still find you.”
Risk of assault, abuse must be considered
Injuries at assisted living facilities pose a significant concern, with falls likely representing the most common type of incident, Pritchett said. About one-third of adults living in nursing homes fall at least once per year and around 40% of nursing home residents over age 65 die as the result of a fall, according to a 2020 study published in the journal Annals of Geriatric Medicine and Research.
“We also see claims alleging improper care, failure to monitor residents, delay in seeking medical treatment, and pressure injuries,” Pritchett said.
According to the U.S. Government Accountability Office, nursing home abuse citations doubled from 2013 to 2017, with physical abuse being the most common type of abuse.
Given the risk of abuse and assault in assisted living facilities, owners purchasing Medical Professional Liability Insurance should consider adding Sexual Abuse and Molestation (SAM) coverage to their policy, Chetosky noted. Some markets will include this coverage on standard policy forms, while others may sublimit or exclude the risk altogether. “Finding comprehensive Sexual Abuse and Molestation coverage is very important for this class of business,” she said. “If your coverage excludes it, it will be extremely important to find a separate standalone Sexual Abuse and Molestation policy to go along with your Medical policy. We also have the capability to write a SAM Excess policy.”
According to Chetosky, coverage to address the risk of sexual abuse is key for any company operating today. “It is very important in residential facilities because these clients are so vulnerable and one accusation can result in high legal costs,” she said. “There are also ways to help mitigate losses that many insurance carriers include in their services.”
Review coverage, risk management policies regularly
Other common enhancements to Medical Professional Liability Insurance policies include coverage for falls, bed sores, and elopement. “Some policies offer these coverages on a sublimit basis and others will offer full policy limits,” Pritchett explained.
According to a 2023 report by the Washington Post, more than 2,000 individuals wandered away from assisted living and memory care homes between 2018 and 2023.
There has to be an insurance policy in place — there is no question about it.
Other potential add-ons as well as any exclusions should be discussed with an insurance broker who specializes in assisted living facilities, Chetosky said. “Be mindful and diligent when reviewing policy forms and policy exclusions,” she said. “Work with an expert broker at Burns & Wilcox to really help home in on the important verbiage.”
Given the risks associated with these facilities, “there has to be an insurance policy in place — there is no question about it,” Pritchett said, adding that staff selection is a critical component of proper risk management.
Strong hiring and training practice are also necessary, Chetosky said. “The staff is the face of the company,” she said. “Having the best possible individuals with the best possible training is of utmost importance.”
