Posted January 22, 2015 | News
Pennsylvania courts have ruled that the Unfair Trade Practices Consumer Protection Law does not apply to nursing home abuse cases because it doesn’t apply to medical providers. So how could it possibly help a plaintiff prevail in a personal injury or wrongful death lawsuit? In this blog post, I’ll explain a surprising but effective litigation strategy built around UTPCPL claims.
I know what you may be thinking: this guy doesn’t know what he is talking about and should check the law.
After all, it’s clear that Pennsylvania Courts have found the Unfair Trade Practices Consumer Protection Law ( “UTPCPL”) inapplicable to the providers of medical services, and does not provide a private cause of action against providers of these services. (See Foflygen v. Zemel, 420 Pa. Super. 18, 36-37 (1992)). Moreover, the only Pennsylvania Court to address whether the UTPCPL applies to a nursing home found the following:
The statute does not create a private cause of action against a nursing home based upon its delivery of medical services, and therefore… a plaintiff can maintain a private cause of action against a nursing home under the UTPCPL based only upon the non-medical services provided by the nursing home.
(See Zaborowski v. Hospitality Care Ctr. of Hermitage, Inc., 60 Pa. D. & C.4th 474 (Pa. County Ct. 2002)).
So, since all this is all true, why should I make a UTPCPL claim in my nursing home neglect and abuse case?
Here’s why. Any attorney who regularly handles cases of nursing home neglect and abuse knows that in addition to a client’s chief complaint that the nursing home did (or did not) take certain actions, causing a parent to suffer horrible injuries or death, they will also tell you how horrendous their loved one’s treatment at the facility was. Some of the most common complaints I’ve heard from clients include:
Not only do these actions violate Pennsylvania residents’ rights — they are also clearly inconsistent with most nursing home facilities’ advertising brochures and admissions agreements.
Therefore, I suggest that practitioners make a claim for deceptive conditions under the UTPCPL, which differentiates between medical and non-medical services. In the Complaint, specifically set forth the conduct constituting unfair or deceptive acts prohibited by the UTPCPL which pertains to non-medical goods and services.
Even if such claims are relatively minor in comparison to the personal injury or wrongful death claim, the benefits of including them are significant.
First, the claim may allow you to introduce evidence at trial showing the extremely dirty and unpleasant living conditions which may otherwise be excluded as irrelevant.
Second, it will give you leverage when negotiating settlement of the claim. Under the UTPCPL, a plaintiff may be entitled to punitive damages, attorney’s fees, and treble damages. Generally speaking, these types of damages (barring exceptional circumstances) are not permitted in nursing home cases arising from neglectful care. Further, the defendant’s risk of exposure to payment of the plaintiff’s attorney’s fees may significantly increase your leverage when negotiating a settlement before trial.
In summary, I suggest attorneys use the UTPCPL to their advantage when filing a claim for nursing home neglect or abuse. A claim under the Pennsylvania Consumer Protection Act may add the leverage needed to settle a case, allow for admission of favorable evidence at trial, or allow for attorney’s fees and punitive damages if successful. With all these advantages, the better question is really why not add a UTPCPL claim to your Complaint?
Brent Wieand, Esquire, is the founder of the The Nursing Home Injury Help Center. He is admitted to practice in Pennsylvania and New Jersey state and federal courts. He has obtained numerous six-figure settlements for seriously injured clients, and has been selected as a Super Lawyers “Rising Star” in 2013, 2014 and 2015.
To set up a completely free and confidential legal consultation, call Brent at (877) 654-3887 today.