Nancy Gimenez-Watson was a resident of Brighton Gardens of Edison, an assisted living facility (ALF) operated by Sunrise Senior Living and its parent company. Mrs. Watson was in the “Reminiscence Plus” program for residents diagnosed with Alzheimer’s disease or dementia. In April 2008, Mrs. Watson choked on her food. After a Brighton Gardens nurse administered the Heimlich maneuver and dislodged an obstruction, Mrs. Watson was sent to the hospital for observation and returned to the ALF the same day. Contrary to ALF policy, there was no formal reassessment of her condition following the hospitalization. Her attending physician was informed of the choking incident the following morning, but ALF staff did not request that he examine her, and he did not do so. Later that month, Mrs. Watson suffered a second choking incident. There is conflicting evidence as to whether the ALF staff performed the Heimlich. Paramedics responded to the ALF 911 call, performed emergency services, and transported her to the hospital, where she later died.

Individually and on behalf of the estate, Mrs. Watson’s son sued the ALF, its operator, and the parent company. The case was removed from the Superior Court of New Jersey to Federal District Court. Following discovery, the ALF operator and its parent company moved for summary judgment. That motion was granted in part and denied in part.

The negligence counts (alleging gross negligence, negligence, medical malpractice and professional negligence) survived the summary judgment motion. The defendants had argued that, as a matter of law, an ALF is not held to the same standard as a medical doctor, and that since the attending physician did not evaluate Mrs. Watson or order the ALF to modify her treatment following the first choking incident, the defendants could not have violated a duty of care. The judge rejected this argument, finding that the doctor had relied on the ALF staff’s reporting of the incident when deciding whether to take additional steps, and an issue of fact existed as to whether the defendants accurately and completely reported the first choking episode to the doctor. As the court noted, the doctor had testified at deposition that, if the nursing staff had let him know that there was a swallowing issue, he would have ordered an evaluation. Other issues raised a question of material fact regarding the negligence claims: the staff had noticed a decline in Mrs. Watson’s appearance shortly before the second choking incident, which was not relayed to the doctor; after the first choking incident, although the ALF’s own policies required that an Incident Report be created, no such report was located during discovery; and the ALF failed to follow its choking protocol during the second incident, according to paramedics’ reports that the Heimlich maneuver and CPR had not been initiated upon their arrival.

The judge also declined to dismiss the punitive damages claims. Although the defendants argued that the alleged conduct failed to rise to the level of culpability required to impose punitive damages, the judge pointed to the plaintiff’s allegation of intentional understaffing at the ALF, and that this fact-sensitive issue was not suitable for resolution by way of summary judgment.

The judge did dismiss the plaintiff’s allegations of statutory violations by the defendants. The court found that the New Jersey Nursing Home Responsibilities & Rights of Residents Act (N.J.S.A. §30:13-1 et seq.) does not apply to assisted living facilities; that the Standards for Licensure of Assisted Living Residences, Comprehensive Personal Care Homes, and Assisted Living Programs (N.J.A.C. §8:36-1.1 et seq.) and the Standards for the Licensure of Long-Term Care Facilities (N.J.A.C. §8:39-1.1 et seq.) do not confer a private right of action on the plaintiff. The judge found that, although the Federal Nursing  Home Reform Amendments (42 U.S.C. §1396r et seq.) (“FNHRA”) might confer a private cause of action, it was intended for Medicaid recipients, and there was no evidence that Mrs. Watson was receiving Medicaid; moreover, the FNHRA can only be enforced through 42 U.S.C. §1983, and Brighton Gardens is a “private actor”; finally, it is unclear whether an ALF meets the FNHRA definition of a “nursing home.”

The judge refused to dismiss the plaintiff’s claims that the ALF’s parent company should be held liable for the acts of its subsidiary, the ALF operator, finding that whether the corporate veil should be pierced is a fact-intensive issue ordinarily reserved for the trier of fact.

A copy of Watson v. Sunrise Senior Living can be found here – Watson v Sunrise Senior Living Facility Inc

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