Long Term Care and Senior Housing Hot Sheet -Breaking Developments in Long Term Care and Senior
Housing Law
03.30.2006
New Court Decision Presents Challenges to Defending Neglect Cases
Under Washington's Vulnerable Adult Statute
Washington’s Abuse of Vulnerable Adult Statute (“VAS”), RCW 74.34 et seq., was first passed
in 1984. It was amended in 1999 and the legislature specifically announced its intent to protect
“vulnerable adults.” “Vulnerable adults” include those age 60 and older who are unable to care
for themselves due to physical, mental and/or a functional limitation. The VAS is intended as an
“additional remedy” to those already available under Washington law, such as a medical
malpractice suit. Thus, the VAS creates an independent cause of action for the “abuse,”
“neglect,” “abandonment” and/or “financial exploitation” of a “vulnerable adult.”
Despite its importance to those caring for the elderly, there has been relatively little case law
construing the VAS – or the four enumerated offenses which give rise to liability under it. In
2001, Shumacher v. Williams, 107 Wn. App. 793, 28 P.3d 792, held that the remedies provided
by the VAS were only available to the vulnerable adult and in the event of death, his or her
statutory beneficiaries. Thus, siblings or other heirs cannot recover under the VAS. However, in
2003, Conrad Ex Rel. Conrad v. Alderwood Manor, 119 Wn. App. 275, 78 P.3d 177, upheld a
$4.75 million dollar jury award for “neglect.” More troubling, was its recognition that common
law negligence could be sufficient evidence of “neglect” for purposes of the VAS.
On March 20, 2006, Division I of the Washington Court of Appeals announced its decision in
Warner v. Regent Assisted Living. Warner involved two separate claims. The first was by Mr.
Warner, who resided in an assisted living facility. Warner brought suit alleging he had suffered
neglect under the VAS when it failed to provide basic housekeeping services and allowed him to
sit for long periods in soiled undergarments. In another instance, it also failed to provide him
with medicine for four days. Warner’s allegations were primarily supported by the observations
of his adult children who reported finding him in clothing soaked in urine and feces.
The trial court dismissed Warner’s VAS claim because the adult children’s testimony was “too
generic” to establish the tort of medical negligence. Moreover, while the failure to provide
medicine was a breach of the standard of care, Warner could not demonstrate this failure
proximately caused him any actual harm.
The Court of Appeals reversed. It held that the standard of proof under the VAS is different from
a negligence claim. The VAS does not require expert testimony to establish “neglect,” “pain and
suffering” or resulting damages – as would be required in a medical malpractice suit. Rather,
neglect could be shown through lay testimony – like that of Warner’s adult children, and through
violations of the facility’s policies and procedures – requiring compliance with treatment plans
and regular clothing changes. Similarly, proximate cause could be shown through testimony that
Warner was embarrassed or uncomfortable because of these conditions.
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The second claim arose out of an assault alleged by a 91-year-old demented resident, Ms.
Mantooth. After several days of increasing agitation and aggressive behavior, she accused an
aide of attempting to get into bed with her. Her treating psychologist indicated her allegation
could have been the result of dementia – or could have been factual. There was no other
corroborative evidence beyond the demented resident’s claim.
The trial court analyzed Mantooth’s statement under the “excited utterance” exception to the
hearsay rule – a rule of evidence which bars admission of certain out-of-court statements. Under
the excited utterance exception, statements made while the speaker is still under the stress of an
emotional event may be admitted at trial. The fact that they were made under the stress of the
event and before the speaker has time to consciously fabricate, makes such statements more
reliable.
The trial court found Mantooth’s statement did not constitute an excited utterance. First, her
dementia called into question the reliability of her statement. While not completely dispositive,
this is a factor which a court can consider in determining whether to admit a hearsay statement.
Second, there was no evidence that Mantooth had remained in an agitated state during the two
hours between the alleged event and the time of her accusation. As such, her statement did not
qualify as an excited utterance. The statement was excluded. Since this was the only evidence of
an alleged assault, that claim was dismissed. This decision was affirmed on appeal.
In conclusion, Warner will present challenges to defending VAS claims. Allowing lay testimony,
as opposed to expert medical testimony, to support a case of “neglect” lowers the burden of
proof for plaintiffs pursuing such claims. In addition, by eliminating the concept of a “standard
of care” from the neglect equation, senior housing facilities will have a more difficult time
obtaining dismissal of VAS claims through summary judgment before trial. However, Warner
may help those facilities defending against the unsupported allegations of a demented or
cognitively impaired resident.
For more information, please contact the Long Term Care and Senior Housing Law Group at:
Lane Powell PC:
(206) 223-7000 Seattle
(503) 778-2100 Portland
(360) 754-6001 Olympia
longtermcareandseniorhousing@lanepowell.com
www.lanepowell.com
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