A troubling trend has developed across the country in long term care malpractice litigation. Plaintiffs have been using state consumer protection statutes to lodge skilled care malpractice claims. This practice most recently reared its head in Pennsylvania. The Supreme Court of Pennsylvania decided, in Commonwealth of Pennsylvania v. Golden Gate National Senior Care, LLC,1 that failure to provide the services documented in a care plan can be alleged as a form of consumer fraud. This is bad law for all long term care providers and should be a call to action.
State consumer protection acts were originally enacted to address advertising fraud. Many have been expanded to address fraud in consumer transactions, generally. The Pennsylvania court made that point in holding that non-advertising marketing materials are also covered by the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCP”). The court broadly swept into the UTPCP claims about resident assessments and care plans. In support, the court cited the UTPCP sections on representing goods or services as having certain sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have and on engaging in any other fraudulent or deceptive conduct. However, the court did not address significant aspects of fraud claims that would render care plan and assessment claims not cognizable.
A fraud claim that a facility falsely represented in care plans and patient assessments that particular care would be given, but was not given, does not sound in fraud. A typical fraud claim requires a material or negligent misrepresentation of existing fact, reasonable reliance on that misrepresentation, and injury to the consumer. Most states also require that the misrepresentation be made intentionally or knowingly. Actionable fraud involves statements of existing fact and not statements of future facts, opinions or promises of future conduct. Claims that care plans setting forth care to be provided in the future are not fraud claims. Further, claims that the promised care was not provided require that when the misrepresentation was made, it was never intended that the care be provided. The fraud must occur at the time of the representation of fact, not in the future. This temporal element was missing in the Pennsylvania court’s opinion.
Another significant fraud element missing in the Pennsylvania court’s opinion was reliance on the misrepresentation when it was made to induce the consumer into accepting the long term care services. Care plans are based on the recognized resident needs identified by medical opinion. Again, opinions cannot form the basis of fraud claims. The plans contain lists of future interventions to address resident needs. They do not require acceptance or rejection by a consumer because they are based on medical opinion and industry standards. Further, care plans contain lists of interventions without knowledge of which interventions will work with each resident, which is the diagnostic opinion feature of care plans. Finally, the information that goes into care planning is not known when the decision is made to accept long term care services. The resident cannot rely on information that is not available.
Two things are abundantly clear in the Pennsylvania court’s opinion: the court misapprehended the nature of care planning and assessment and the long term care defense bar must work diligently to foreclose on this line of argument. This trend has found purchase in almost every state that has adopted tort reform because it takes cases out from under the negligence/malpractice rubric to bypass the damages caps and benefit from consumer protection statutes allowing double and treble damages.
The takeaway is that misapplication of consumer protection act statutes is catching on and we need to educate our judiciary on how the elements of fraud are not present in these negligence cases masquerading as consumer protection fraud claims.
1 Commonwealth of Pennsylvania v. Golden Gate National Senior Care, LLC, et al., (Pa. Sup. Ct. Sept. 25, 2018, Case No. 16 MAP 2017)