CARIE filed an amicus curiae (“friend of the court”) brief in the successful appeal to the Pennsylvania Supreme Court of the Commonwealth Court’s dismissal of claims against a nursing home chain for false advertising and violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law. (Commonwealth of Pennsylvania vs. Golden Gate National Seniorcare, LLC., et al.).
Even though there was oral and written testimony that the Defendant nursing homes and their parent company did not provide the level or quality of care stated in advertising and represented to potential residents and their families, the Commonwealth Court dismissed the false advertising claims finding that they were “mere puffery”, i.e., marketing or advertising claims that no one was expected or intended to rely on that did not constitute unfair trade practices or false advertising
The Complaint filed by the Pennsylvania Attorney General’s Office included allegations that oral and/or written statements by the nursing home chain such as “snacks and beverages of various types and consistencies are available any time from your nurse or nursing assistant”, “we have licensed nurses and nursing assistants to provide nursing care and help with activities of daily living . . . .Whatever your needs are, we have the clinical staff to meet those needs”, “clean linens are provided for you on a regular basis”, violated Pennsylvania’s Unfair Trade Practices and Consumer Protection Law because they created the impression that the nursing home facilities provide care that they do not in fact provide.
CARIE argued, among other things, that the stressful and often crisis-driven nature of the nursing home selection process, nursing home residents’ susceptibility to abuse, and the fact that there does not exist a reliable way of evaluating, rating and/or comparing nursing homes makes nursing home residents uniquely vulnerable and in need of protection from false and misleading statements. In addition, CARIE’s brief pointed out that the marketing statements made by the Defendants reflected specific statutory requirements and therefore should not be dismissed as puffery but should be able to be relied upon by those choosing a long term care residential facility..
The Pennsylvania Supreme Court reversed the Commonwealth Court’s dismissal of the Complaint’s Unfair Trade Practices and Consumer Protection Law claims and sent the case back to the Commonwealth Court where those claims will proceed.
We will continue to follow this case. The implications of the Supreme Court’s decision regarding quality of care claims made by nursing homes hopefully will extend beyond the facts of this particular case to require that nursing homes not market themselves with false statements about the care that residents and their families can expect.
We are grateful to Community Legal Services of Philadelphia for providing CARIE with legal representation in this appeal.