Assisted Living Facilities May Be Protected By Virginia's Malpractice Act

Published on: 4/15/2005

April 15, 2005

In a recent case, Reid Broughton of Sands Anderson Marks & Miller's Radford office successfully argued that assisted living facilities are protected by Virginia's Medical Malpractice Act ("the Act"), Va. Code § 8.01-581.1, et seq. The Court's ruling is significant because conventional wisdom had concluded that assisted living facilities were never subject to the Act, and because the Act includes a cap on plaintiffs' damages.

The Act limits its protection to cases against "Health Care Providers." The Act defines Health Care Providers by identifying types of entities which are Health Care Providers, including hospitals, physicians, nurses, and nursing homes. However, the Act does not expressly include assisted living facilities within the definition of Health Care Providers. (Assisted living facilities do not fit within the definition of nursing home because they are residential facilities not primarily concerned with rendering nursing care).

For this reason, the Supreme Court of Virginia previously ruled in Commercial Distributors, Inc. v. Blankenship, 240 Va. 382 (1990), that certain assisted living facilities were not subject to the Act. Blankenship involved a home for adults that did not administer health care. Its residents saw health care professionals of their own selection outside the facility, and were free to come and go from the facility. A resident of the facility had left the facility and committed suicide. His estate brought suit, alleging the facility should have recognized the decedent's intent and prevented his suicide. The Supreme Court found that the facility had no such obligation and was not held to the standard of care of a health care provider.

This opinion had led many practitioners to believe assisted living facilities were not Health Care Providers protected by the Act. Indeed, in our case, another assisted living facility, represented by another firm, had conceded the Act did not apply to it.

However, Sands Anderson believed the Blankenship case was not conclusive under the facts of this case. The Plaintiff argued that the Act's definition of a Health Care Provider does not include assisted living facilities, and that Blankenship had held the Act did not apply to assisted living facilities.

We argued to the contrary that the Blankenship Court 's language implies that there might be adult homes of a type subject to the Act. We explained that there are adult homes that provide healthcare, and distinguished the adult home in our case from the one at issue in Blankenship . We argued that the Act must apply if the plaintiff's claim is based on healthcare. This is especially true because the issue of negligence, i.e. whether the defendant's conduct was appropriate, can only be addressed by a medical professional familiar with the standards for such care.





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