Thu 7th Mar | 2013

Elderly Woman’s Death in Independent Living Facility Sparks Questions About Legal Liability – The Palm Beach Post

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Medical Aid at Senior Living Centers: Read Fine Print First, Advocates Say

By Sonja Isger

Palm Beach Post Staff Writer

The recent death of an 87-year-old woman at an independent living facility in California, as a nurse following company policy refused to administer CPR, has stunned advocates and people in the business of elder care alike.

Now they are warning seniors to read the fine print before moving into such accommodations and wondering what else should be done to ensure medical assistance where they say most people would expect it.

“It never occurred to me that CPR might not be provided in an independent living facility,” said Robyn Grant, director of public policy and advocacy for The National Consumer Voice for Quality Long-term Care in Washington.

“This is certainly a wake-up call. This is something else consumers are going to have to ask about,” Grant said.

In Florida and other states, assisted living facilities are regulated but independent living facilities are not, though the two are often sold as a package to seniors looking for a comfortable community with perhaps meals and transportation now and medical assistance should they need it down the road.

Even so, denying CPR to a resident who drops in front of a staff member seems unfathomable to Tom Smith, executive director of Harbour’s Edge in Delray Beach.

“I would say if staff is CPR certified, they ought to be performing CPR,” said Smith, who could think of no company policy that would forbid it.

That was not the case at Glenwood Gardens retirement community in Bakersfield, Calif. where Lorraine Bayless collapsed last week.

A woman identifying herself as a nurse called 911 for help, but refused the dispatcher’s plea to start CPR, saying it was against the facility’s policy.

“I understand if your boss is telling you you can’t do it,” the dispatcher said. “But … as a human being … you know … is there anybody that’s willing to help this lady and not let her die?”

“Um, not at this time,” the nurse replied.

In the course of the 7-minute, 16-second call, dispatcher Tracey Halvorson assured the nurse that Glenwood couldn’t be sued if something went wrong. Halvorson also implored the nurse to find a passerby or some other stranger who would act.

But no one did until paramedics arrived, by which point Bayless had no pulse and wasn’t breathing. Bayless was later declared dead at a hospital.

Glenwood Gardens’ executive director Jeffrey Toomer said in a written statement this week that the nurse did indeed follow policy.

“In the event of a health emergency at this independent living community our practice is to immediately call emergency medical personnel for assistance and to wait with the individual needing attention until such personnel arrives,” Toomer wrote. “That is the protocol we followed.”

A spokesman for Glenwood Gardens’ corporate owner, Brookdale Senior Living, Inc. in Tennessee, told CNN that the nurse was hired to be the resident services director, and “that is the capacity in which she was serving.”

Toomer offered condolences to the woman’s family and said a thorough internal review of the incident would be conducted, according to The Associated Press. The company said Wednesday the employee is on voluntary leave while the case is being investigated.

Toomer told KGET-TV that residents of the facility are informed of the policy and agree to it when they move in. He said the policy does not apply at the adjacent assisted living and skilled nursing facilities.

It’s not uncommon for senior communities to offer a continuum from independent living facility to an assisted living facility.

At Harbour’s Edge, residents buy a package that offers apartment-style independent living, including meals that can be taken in a common dining area. The package allows those residents to transfer into more managed care in the assisted living facility should the need arise, Smith said.

But even residents in the 266 apartments on the independent living side can call staff for help or dial 911.

“They can do both. We have an alert system, it’s a pull chord and someone will come to their assistance. It’s not infrequent that someone could call 911. And chords get pulled daily. Sometimes it’s as simple as someone needs a glass of water and sometimes more,” Smith said.

MorseLife also offers independent and assisted living. Tradition of the Palm Beaches, as the independent side is called, has a medical clinic, said spokesman Greg Goodman.

“We have a nurse and staff who are doing what we need to do before EMS gets there,” Goodman said of emergency situations.

The fact that the two living situations are often on the same property can lead to confusion, said Grant, with the Consumer Voice for Quality Long-term Care.

“On the part of consumers, there’s some assumption,” Grant said. “It’s not just like an apartment you’re moving into. It’s more than that. There’s the idea that’s implied that this is a kind of safer setting for something than if they were living on their own.”

It’s not clear how many facilities have policies like at Glenwood Gardens. No federal law or regulation addresses the question, Grant said.

In Florida, only the assisted living sides of these facilities fall under the state’s Agency for Health Care Administration and the state’s laws for staffing, including requirements that someone trained and certified in CPR be on duty at all times.

But in independent living facilities where there is no medical staff and residents are living in individual units, the establishment is licensed as an apartment, according to Florida’s Department of Business and Professional Regulation. DBPR’s jurisdiction extends only to the safety and sanitation of the common areas, said spokeswoman Sandi Copes Poreda.

As for refusing to help someone in need, neither doctors nor passersby have a legal obligation in Florida to render aid, said Florida attorney Julie Littky-Rubin. She said medical professionals have higher protection against being sued by those they helped or their families. “No person has a duty to undertake to help somebody.”