By:
David Barmak, Esq.
Three recent class action suits involving long-term-care facilities-two brought by patients and one by staff-offer differing insights into the fact that class action suits in the nursing home environment are still very much a gray area in the absence of clear cut prima facie evidence of wrongdoing.
By way of background: all class action lawsuits are governed by the “Federal Rules of Civil Procedure, Title IV. Parties, Rule 23. Class Actions.”
This “Rule 23” states that four basic requirements have to be fulfilled in order for a class action to be entertained by the courts:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
It goes without saying that even if all these requirements are met, it is no guarantee that a class action suit will be successful-all it does is ensure that the case will actually be heard.
These four requirements are known as numerosity, commonality, typicality, and adequacy-but they are not the only requirements.
An overview of one recent case illustrates this. In September this year, a U.S. district judge dismissed a class-action lawsuit that alleged that the District of Columbia had failed to comply with a federal mandate to move eligible and interested Medicaid recipients out of nursing homes and into the community-even though the facts clearly showed that patients had indeed not been moved.
The plaintiffs’ complaint said that between 500 and 2,900 people with disabilities in the District are “unnecessarily institutionalized in nursing facilities, segregated and isolated from their families and friends” and that “these individuals desperately want to return to their communities.”
As reported in the media, US District Judge Ellen Segal Huvelle ruled that a single injunction could not remedy the problems experienced by the elderly and disabled nursing home residents because “barriers to moving them back into the community extended beyond the system’s shortfalls with transition services.”
The court listed a “lack of affordable and accessible housing in the District,” “few wheelchair-accessible units,” and, “for some residents, poor credit history or criminal records that made it harder to secure housing.”
Thus, the court ruled, “plaintiffs have failed to demonstrate the existence of a concrete, systemic failure that entitles them to class-wide relief.”
Although the plaintiff’s attorneys expressed disappointment, a close reading of Rule 23 made this ruling predictable: It specifically says that a class action may be maintained only if prosecuting separate actions would create a risk of inconsistent rulings for individual cases, or would “establish incompatible standards of conduct for the party opposing the class.”
In other words, the differing outcomes for individuals involved in the suit, based on their own particular circumstances, made a single ruling in this regard impossible, given all the factors.
Two more recent cases-which have yet to be ruled upon, reveal further how different class action suits can play out in the court.
The first concerns an October 2017 suit brought by a worker who argues that the Illinois-based Paramount of Oak Park Rehabilitation & Nursing Center has breached the Illinois Biometric Information Privacy Act (BIPA) by forcing staff to check in and out of work by scanning their fingerprints.
The suit claims the scans are “invasive” and “expose workers to serious and irreversible privacy risks,” particularly if the facility should suffer a data breach. It demands that Paramount stop using fingerprints as a clock-on, clock-off procedure, and destroy all existing databases.
It will be interesting to see how this case plays out-and if it even gets as far as a hearing-because a reading of Rule 23 reveals that a class action can only be maintained if decisions on individual cases “would be dispositive of the interests of the other members not parties to the individual adjudications,” or would substantially impair their ability to protect their interests.
In addition, the suit has been filed by one individual, claiming that it “could apply to hundreds of individuals”-but Rule 23 is very clear on the demand for numerosity.
It has often been remarked upon that Rule 23 makes no number determination, and that is true-but practical experience has shown that class action suits are most commonly entertained when the number of plaintiffs who have joined together exceed 40.
It is clear, therefore, that the single plaintiff will have to gather quite a few more co-plaintiffs if this case is to move forward and be recognized by the courts, as specified by Rule 23.
The third recent case worth considering is another October 2017 suit filed against a Syracuse institution, the James Square Health and Rehabilitation Center, which makes far-reaching claims of mistreatment of residents, including claims that “hundreds” of residents were “left lying in their own urine and feces for extended periods of time.”
The suit-once again launched by an individual-claims that the nursing home does not have enough staff to care for incontinent residents, and that if the suit is recognized as a class action by the court, “hundreds if not thousands” of current and former residents could automatically become part of the case.
Needless to say, these are all allegations-and few institutions know better the damaging value of unsubstantiated allegations than do long-term-care facilities-and the burden of proof will lie heavily upon the plaintiff, or plaintiffs, if the case gets to a hearing.
While the court makes its decision in that regard, it is worthwhile to remember that Rule 23 demands that it be shown that the party opposing the class action has “refused to act on grounds that apply generally to the class”-this to allow for any final relief to apply to all the applicants as a whole.
This means that the plaintiff/s will have to show that the facility has deliberately refused to act to remedy all the individual complaints-a high bar to meet.
Obviously no one would want to defend the indefensible-and if there is continued, unrectified abuse or neglect, compensation is in order for an individual or a group.
But, as demonstrated above, proving the four main elements demanded by the law is not quite so straightforward as the average person on the street might think-and the burden of proof lies heavily on the plaintiffs’ shoulders.
