It was painful to read the news reports about the Emeritus guilty verdict.  After reading the first article about the case a few weeks ago, I assumed Emeritus was going to get dinged on this one, but it was unclear how bad it would be.  I first wrote about it in this article: Case Study – “Suit: Facility let woman ‘waste away’”.

It was painful to read the news reports about the Emeritus guilty verdict.  After reading the first article about the case a few weeks ago, I assumed Emeritus was going to get dinged on this one, but it was unclear how bad it would be.  I first wrote about it in this article:  Case Study – “Suit: Facility let woman ‘waste away’”.

According to the story in the March 6, Sacramento Bee Story, the jury found Emeritus to be guilty, finding that “that an employee, officer, director or a managing agent acted with recklessness, malice, oppression and fraud.” The family was given an initial award of more than $4,000,000 which will likely be reduced to around $250,000 because of statutory pain and suffering limits. 

Then on Friday the jury awarded an additional $23 million in punitive damages. In the damage story, it came out that Emeritus had made a pretrial settlement offer of $3.5 million suggesting that from the very beginning they were expecting to get hurt.

What it Means

Emeritus is not known as a company that scrimps on resident care.  In fact the Emeritus people I know have a huge commitment to providing quality care and services to their resident.  It seems pretty clear this was an isolated problem at one community, with one resident  . . . something that happened 5 years ago.  Don’t get me wrong, I do think it was probably not unreasonable that Emeritus pay something.

That being said . . .

  • To take one single incident and use it to imply “recklessness, malice, oppression and fraud” is a huge stretch.  This is particularly true because in Emeritus is a good company and runs good senior communities.
  • It is particularly frustrating that the Sacramento Bee was essentially a shill for the plaintiff attorneys.  They ran at least 3 stories that were heavily slanted against Emeritus. Most egregious is it appears that the article on closing arguments only covered the plantiff’s side and not the Emeritus defense. That is not reporting.
  • To be honest, it appears there were some real problems with this particular situation:
    • Several people have wondered if this woman should have ever been admitted.  It is a good question, but without seeing the specific facts, it seems to me that it was a reasonable, better quality of life for the resident, decision.
    • It sounds like this woman was frail and was probably assisted with bathing, so the fact that the decubitus ulcers were not caught, documented, reported and addressed earlier is problematic.
    • This has to be the worst nightmare for operators, because assuming there was a problem, it could very well come down to one or two staff members who didn’t do the things should have done.
  • It seems unlikely that whatever happened had a substantial impact on the resident’s longevity which makes the $23 million look ridiculous.
  • There seem to be several “facts” that proved Emeritus provided substandard care, that even if true, don’t seem to have substantive relevance to the case.  The one that really caught my eye was the allegation that on at least one occasion, there was no dedicated night shift memory care staff member (or at least no record of it).  This seems to be mostly emotional smoke without fire; surely not an ideal thing, but the implication that somehow this caused the community to miss the skin problems makes no sense
  • I feel particularly bad for all the hardworking dedicated Emeritus team members who work hard each day providing great care for their seniors that have now been tainted.
  • It suggests it is now open season, at least in California, for assisted living providers.  Again something that will make it harder to provide great care for seniors.

In truth, this week and in the weeks to follow, the fine providers of assisted living, including those who work for Emeritus will continue to provide quality compassionate care to seniors in the state of California.  

This case and the on-going threat of litigation will force senior communities to be more careful, to expend more time and energy on protecting themselves from predatory attorneys.  This in turn means higher costs.  

What do you think of the verdict and of the amount of punitive damages?

Steve Moran