Friday, March 24, 2017

Nursing homes' claims are puffery

Commonwealth of Pennsylvania v. Golden Gate National Senior Care LLC, No. 336 M.D. 2015, --- A.3d ----, 2017 WL 1075535 (Comm. Ct. Pa. Mar. 22, 2017)

Golden Gate manages and operates 36 skilled nursing facilities in Pennsylvania.  The Commonwealth sued for: (1) Unfair Trade Practices and Consumer Protection Law (UTPCPL) violations; (2) breach of contract; and (3) unjust enrichment. I’ll consider only the advertising-related claims.

The UTPCPL does not apply to providers of medical services, but nursing homes are “hybrid organizations, offering both medical and non-medical services.” They are liable under the UTPCPL only as to the non-medical services they provide. 

The Commonwealth challenged chain-wide marketing statements that the court found were puffery:

·       “We have licensed nurses and nursing assistants available to provide nursing care and help with activities of daily living (ADLs). Whatever your needs are, we have the clinical staff to meet those needs.” This claim was “expressed in broad, vague, and commendatory language.”

·       “Snacks and beverages of various types and consistencies are available at any time from your nurse or nursing assistant.” Likewise, as applied to the Commonwealth’s allegation that there was insufficient staffing to timely respond to residents’ requests.

·       “A container of fresh ice water is put right next to your bed every day, and your nursing assistant will be glad to refill or refresh it for you.” This was mere “subjective analysis or extrapolations, such as opinions, motives and intentions, or general statements of optimism.”

·       “Clean linens are provided for you on a regular basis, so you do not need to bring your own.” This claim was “vague” and undefined.

·       “Providing exceptional dining is important to us. Not only do we want to meet your nutritional needs, but we want to exceed your expectations by offering a high level of service, delicious food and an overall pleasurable dining experience. … We have a seat reserved for you in our dining room!”  This was puffery expressing Golden Gate’s “priorities and intentions for residents, rather than makes specific objective representations about the quality of the dining experience.”  Though the Commonwealth alleged that residents couldn’t use the dining facilities due to staffing shortages, the “reserved seat” claim wasn’t a promise that residents would always be brought to the dining facilities.

·       “[W]e believe that respecting your individuality and dignity is of utmost importance.”  The “we believe” was enough to signal “subjective analysis or extrapolations, such as opinions, motives and intentions.”

·       “A restorative plan of care is developed to reflect the resident’s goals and is designed to improve wellness and function. The goal is to maintain optimal physical, mental and psychosocial functioning.”  The Commonwealth didn’t allege that the plans weren’t developed, but that they were incomplete or not properly followed/updated. The description of the plan was aspirational puffery.

·       “We work with an interdisciplinary team to assess issues and nursing care that can enhance the resident’s psychological adaptation to a decrease in function, increase levels of performance in daily living activities, and prevent complications associated with inactivity.” Again, there was no allegation that there was no such interdisciplinary team; the rest was puffery.

·       “Our goal is to help you restore strength and confidence so you feel like yourself again and can get back to enjoying life the way you should. That’s The Golden Difference.”  Too subjective.

The Commonwealth also alleged facility-level misrepresentations, but statements in assessments of individual residents, care plans, and bills for services not provided weren’t advertising or promotion (borrowing the Lanham Act definition).  Statements by individual employees/agents weren’t enough, and “representations made in resident care plan development are not likely to make a difference in the purchasing decision, since such representations are made after an individual is admitted and becomes a resident.”

One judge concurred in part, agreeing with the puffery conclusion but would have held that one portion of the UTPCPL, Section 2(4)(xxi), establishes a cause of action to remedy “any ... fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding,” and doesn’t require an ad; she would have allowed the claim “insofar as it alleges deceptive conduct involving bills and care plans which could directly impact purchasing decisions.”

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