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Extendicare Suit Tossed for Vagueness

Judge says allegations are not specific enough

By Jon Hood
ConsumerAffairs.com

March 9, 2009

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A federal court threw out a lawsuit against nursing home chain Extendicare, ruling that the plaintiffs' allegations were not specific enough to form an actionable claim.

The suit, filed in the U.S. District Court for the District of Minnesota in October, alleged that Extendicare overstated the quality of its services in pamphlets and promotional materials, thereby luring elderly residents into their facilities. According to the complaint, however, once residents arrived there, they found that the service what it was cracked up to be. The suit was filed on behalf of lead plaintiff Laura Bernstein, and defined a class consisting of "all residents who lived in a Minnesota Extendicare facility from Oct. 29, 2002 through Oct. 29, 2008."

At the time the lawsuit was filed, lead attorney Gale Pearson pointed out that, while Extendicare's advertising materials touted the company's "high-quality, skilled nursing care services," the company's 10 Minnesota facilities were repeatedly cited by officials for violation of state laws.

The complaint's allegations, while potentially serious, were not especially specific, which led to the judge's dismissal of the case. The suit attacked the facilities' admission policy, which rated perspective patients' medical conditions by "flag" color, with a "green flag" condition rated as the most serious. The company's procedure mandated automatic admission for any patient labeled with "green flag" status. The lawsuit suggests that this policy leads to overcrowding, and doesn't take into account whether the facility can provide adequate care for the admitted patient, or whether it will deprive other residents of much-needed medical attention.

Lead attorney Pearson also speculated that the policy didn’t take into account whether the patient was "a felon or even a sex offender."

At the time the suit was filed, co-lead counsel Stephen Garcia said, "In my opinion, the Extendicare facilities in Washington are elder abuse cases waiting to happen. It's just a matter of whose parents or grandparents are going to be the victims."

The suit also accused Extendicare of violating Minnesota law in requiring incoming patients to sign a contract waiving the company's liability for personal injury or property loss. Minnesota law states that nursing home admissions agreements cannot include any such waiver.

In dismissing the case, Judge Donovan W. Frank held that the allegations were "so general and unspecific they cannot serve as the basis for a claim." He was so unimpressed with the suit that he prohibited the plaintiffs from refilling with amended counts, holding that the claims were so weak that such an exercise "would not likely be fruitful." Federal rules of procedure set a very low threshold for what constitutes "stating a claim," and courts are generally lenient in allowing plaintiffs to re-file vague suits, so Judge Frank's ruling suggests that this was a particularly weak case.

According to its website, Extendicare operates 266 facilities in 12 states and Canada, and has the capacity to care for 30,000 residents. The company has been operating since 1968 and touts itself as "one of North America's largest long-term care providers."

Elder abuse has gained notoriety in recent years, and a number of lawsuits have been brought on behalf of nursing home residents claiming inadequate care. In September, California long-term care provider Sun Mar settled a class action brought by Garcia, co-lead counsel in the Extendicare action. The suit pled very similar allegations, namely that Sun Mar promoted its facilities above and beyond what they were actually capable of. The suit settled for $2 million.

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