Rising Malpractice Claims in Assisted Living: A Stark Incentive for Robust Aging-in-Place Planning

A recent report from the Nurses Services Organization and CNA Financial Corp. reveals a troubling 32% increase in malpractice claims against assisted living nurses from 2018 to 2023, with claims frequency rising to 0.71 per 100 beds and average severity reaching $284,000. Common allegations include falls (28%), pressure injuries (17%), and wrongful death (15%).  A majority of nurse professional liability claims involved treatment/care allegations (56.2%). The second most frequent category of allegations involved patients’ rights/abuse/professional conduct claims (18.2%). These trends, highlighted in McKnight's Senior Living article on October 2, 2025, underscore systemic vulnerabilities in institutional care settings, where understaffing and complex health needs heighten the risk of neglect and errors. Among the drivers of these claims is "increasing resident acuity," specifically  "acuity mismatches." 
Acuity and Acuity Mismatch
In healthcare, acuity refers to the severity or complexity of a resident's health needs, encompassing physical, cognitive, and emotional conditions. An acuity mismatch occurs when a resident's care needs exceed the capabilities, resources, or staffing levels of the assisted living facility in which they reside. In the context of the CNA report, acuity mismatches arise when facilities accept or retain residents with complex conditions, such as advanced dementia, severe mobility limitations, or chronic illnesses requiring intensive medical oversight, without adequate staff training, numbers, or infrastructure to provide appropriate care. 
A resident with significant cognitive impairment, for example, might require one-on-one supervision to prevent falls or wandering.  An understaffed assisted living facility, however, may lack the personnel or specialized training to meet these needs. This mismatch can lead to neglect, errors, or inadequate monitoring, resulting in incidents like falls,  pressure injuries, or even wrongful death.  These outcomes comprised the vast majority of claims in the study. 
How Acuity Mismatches Drive Malpractice Claims
Acuity mismatches contribute significantly to malpractice claims because they create conditions where care failures are more likely:

• Inadequate Staffing: Facilities often operate with low staff-to-resident ratios, unable to meet high-acuity needs. For instance, a resident requiring frequent repositioning to prevent pressure sores may be neglected if staff are stretched thin, leading to costly claims averaging $284,000.

• Lack of Specialized Training: Nurses may lack expertise in managing advanced dementia or complex medical conditions, increasing risks of errors like improper medication administration or failure to recognize warning signs.

• Facility Misalignment: Assisted living communities are designed for residents needing moderate support, not intensive medical care. Unfortunately, care needs change.  Accepting or retaining high-acuity residents without transferring them to better-oriented assisted living facilities or skilled nursing facilities can result in injury and claims.

• Regulatory Gaps: While states like Missouri have tightened oversight with 2025 laws mandating better staffing and reporting, enforcement varies, and many facilities struggle to comply.  Facilities failing to comply with standards and regulations may leave residents with less capable staff that might be necessary to meet individual and collective needs, heightening malpractice risks.

These mismatches directly fuel claims, as families pursue legal action when loved ones suffer harm due to preventable oversights. The 32% rise in claims frequency reflects how acuity mismatches, combined with other institutional challenges, like staffing or training deficits, create a perfect storm of liability in assisted living settings.
For readers of the Aging-in-Place Planning and Elder Law Blog, this surge serves as a powerful incentive to prioritize home-based strategies that minimize exposure to such hazards inherent in institutional care. As discussed in our "Rethinking Elder Abuse Strategies: How Prophylactic Planning Can Safeguard Autonomy and Aging in Place," proactive tools such as trusts and powers of attorney can help avoid institutional pitfalls altogether. This article examines the report's findings and offers practical guidance for leveraging aging-in-place planning to mitigate these risks.The CNA Report: Escalating Risks in Assisted LivingThe study, analyzing claims data from its Aging Services program, attributes the rise to chronic staffing shortages, exacerbated by post-pandemic turnover, and to residents with higher care needs, such as those with dementia or mobility issues. Falls remain the top claim, often linked to inadequate supervision, while pressure injuries highlight gaps in routine care. Wrongful death claims, though less frequent, carry the highest severity, resulting in significant payouts due to allegations of negligence. Industry leaders like Argentum note that these trends reflect broader challenges, including regulatory pressures and workforce deficits, which could lead to higher insurance premiums and operational costs for facilities.
For consumers, this means that assisted living, once viewed as a safe middle ground between independent living and nursing homes, now carries growing liabilities and risks. The report recommends enhanced training, improved risk assessment, and technology integration (e.g., fall-detection systems) to curb claims.  Still, these fixes don't eliminate the inherent risks and uncertainties of institutional environments.Why the Findings Incentivize Aging-in-Place PlanningThe rising number of malpractice claims is a wake-up call: institutional care, despite regulations, remains prone to human error and systemic flaws that can result in harm and legal battles. These risks are not unique to nursing homes. Aging in place offers a compelling alternative, allowing seniors to control their environment and care, reducing risks like those highlighted in the CNA report. By planning ahead, you can avoid the emotional, physical, psychological,  legal, and financial toll of facility-based mishaps, preserving autonomy.
Key incentives from the report:

• Reduced Exposure to Neglect: Home settings minimize risks through targeted modifications like grab bars or smart sensors, unlike understaffed facilities.
• Customized Care: Family or vetted caregivers can provide personalized attention without the acuity mismatches driving claims.
• Financial Savings: Avoiding high-severity incidents cuts potential medical and legal costs, redirecting funds to home supports.

Practical Strategies: Building a Resilient Aging-in-Place PlanTo harness this incentive, integrate elder law tools into your planning strategy. Establish trusts, advance directives with supported decision making  (SDM), dementia, aging in place, and guardianship directives.  Consider powers of attorney with safeguards. Include health care powers of attorney to outline home-based preferences and prevent forced institutionalization.
Invest in aging-in-place planning technology, medical devices, and security devices and monitors to secure home caregiving. These steps not only mitigate malpractice risk and dangers but also align with the CNA's call for better preparation in senior care.
While this article has provided a thoughtful examination of the rising malpractice claims in assisted living and their role as an incentive for aging-in-place planning, it is by no means comprehensive. The landscape of care risks evolves rapidly, influenced by staffing trends, regulatory changes, and individual circumstances that no single resource can fully capture. Readers, therefore, must remain vigilant, continuously educating themselves through reliable sources like CNA reports, AARP, local elder law attorneys, and this Blog, while regularly evaluating their personal situations to identify potential risks. By combining awareness with tools such as legal safeguards, caregiver screening, and home modifications, seniors and their families can better safeguard independence and thrive as they age in place. For ongoing support, consult a professional and stay informed.  Your security depends on proactive engagement.

Deaths from Nursing Home Neglect Surged Amid the Pandemic

As more than 180,000 of the nation’s long-term care residents and staff died of COVID-19 in a pandemic that has pushed staffs to the limit, advocates for the elderly say a tandem wave of death separate from the virus has quietly claimed untold tens of thousands more.  The most common causes included neglect occasioned by overburdened workers unable to provide necessary care.

Matt Sedensky and Bernard Condon, writing for the Associated Press (AP), told the soul wrenching story of David Wallace: 

"When COVID-19 tore through Donald Wallace’s nursing home, he was one of the lucky few to avoid infection. He died a horrible death anyway."

Hale, hearty, and reportedly happy before the pandemic, the 75-year-old retired Alabama truck driver became so malnourished and dehydrated that he dropped to 98 pounds.  His son reported that he looked like he’d "been in a concentration camp."  No wonder: septic shock suggested an untreated urinary infection, E. coli in his body from his own feces hinted at poor hygiene, and aspiration pneumonia suggested that  Wallace, who required assistance with meals, had  choked on his own food.  All of these conditions developed while Wallace was under the control, custody, and care of a nursing home.  

Kevin Amerson, Walace's son indicted the institution:

“He couldn’t even hold his head up straight because he had gotten so weak. They stopped taking care of him. They abandoned him.”

According to the AP, as nursing homes were opening up to family visitations nursing home watchdogs were being flooded with reports of residents kept in soiled diapers so long their skin peeled off, left with bedsores that cut to the bone, and allowed to wither away in starvation or thirst.

Beyond that, AP interviews with dozens of people across the country reveal swelling numbers of less clear-cut deaths that doctors believe have been fueled not by neglect but by isolation.  The AP described a common mental state plunged residents into despair as a result of prolonged isolation.  The AP noted that many residents cause of death as reported on death certificates was simply “failure to thrive.”

A nursing home expert who analyzed data from the country’s 15,000 facilities for the APs investigation reportedly estimated that for every two COVID-19 victims in long-term care, there is another who died prematurely of other causes. Those “excess deaths” beyond the normal rate of fatalities in nursing homes could total more than 40,000 just since between last March and November.

The industry's record was not stellar prior to the pandemic; studies have indicated that one 

These extra deaths are roughly 15% more than you’d expect at nursing homes already facing tens of thousands of deaths each month in a normal year.

“The healthcare system operates kind of on the edge, just on the margin, so that if there’s a crisis, we can’t cope,” Stephen Kaye, a professor at the Institute on Health and Aging at the University of California, San Francisco, who conducted the analysis, told the AP. “There are not enough people to look after the nursing home residents,” he admitted.

Comparing mortality rates at homes struck by COVID-19 with ones that were spared, Kaye also found that the more the virus spread through a home, the greater the number of deaths recorded for other reasons. In homes where at least 3 in 10 residents had the virus, for example, the rate of death for reasons besides the virus was double what would be expected without a pandemic.

That suggests the care of those who didn’t contract the virus  suffered, possibly  as healthcare workers were consumed attending to residents ill from COVID-19 or were left short-handed as the pandemic infected employees themselves.

Chronic understaffing at nursing homes has been one of the hallmarks of the pandemic, with a few homes even forced to evacuate because so many workers either tested positive or called in sick. In 20 states where virus cases are now surging, federal data shows nearly 1 in 4 nursing homes reported staff shortages.

The nursing home trade group American Health Care Association disputed that there has been a widespread inability of staff to care for residents and dismissed estimates of tens-of-thousands of non-COVID-19 deaths as “speculation.”

Dr. David Gifford, the group’s chief medical officer, said the pandemic created “challenges” in staffing, particularly in states like New York and New Jersey hit hard by COVID-19, but added that, if anything, staffing levels have improved because of a drop in new admissions that has lightened the patient load.

“There have been some really sad and disturbing stories that have come out,” Gifford said, “but we’ve not seen that widespread.”

Another industry group, LeadingAge, which represents not-for-profit long-term care facilities, said staffing challenges are real, and that care homes are struggling in the face of federal inaction to provide additional stimulus money to help pay for more workers.

“These incidents, stemming from the challenges being faced by too many committed and caring nursing home providers during this pandemic, are horrific and heartbreaking,” said Katie Smith Sloan, LeadingAge’s president. “I hope that these tragedies will wake up politicians and the public.”

When facilities sealed off across the country in March, advocates and inspectors were routinely kept out too, all while concerning reports trickled in, not only of serious injuries from falls or major medical declines, but of seemingly banal problems that posed serious health issues for the vulnerable.

Mairead Painter, Connecticut’s long-term care ombudsman, said with dentists shut out, ill-fitting dentures went unfixed, a factor in mounting accounts of malnutrition, and with podiatrists gone, toenails went untrimmed, posing the possibility of painful conditions in diabetes patients.

Even more widespread, as loved ones lost access to homes, was critical help with residents’ feeding, bathing, dressing and other tasks. The burden fell on aides already working tough shifts for little pay.

“I don’t think anyone really understood how much time friends and family, volunteers and other people spent in the nursing home and supplemented that hands-on care,” Painter said.

Strict rules barring in-person visitation persisted in many homes, but as families and advocates have inched back inside, they’ve frequently been stunned by what they found.

The AP shared the  story of June Linnertz, who, when she returned to her father’s room at Cherrywood Pointe in Plymouth, Minnesota, for the first time in three months, she was struck by a blast of heat and a wall thermometer that hit 85 degrees. His sheets were soaked in sweat, his hair was plastered to his head and he was covered in bruises.  Linnertz would learn these bruises came from at least a half-dozen falls. His nails had been uncut so long, they curled over his fingertips and his eyes crusted over so badly he couldn’t get them open.  

Linnertz father, 78-year-old James Gill, was found screaming, thinking he had gone blind, and Linnertz grabbed an aide in a panic. She snipped off his diaper, revealing genitals that were deep red with skin sloughing off.

Two days later, Gill died from Lewy Body Dementia, according to a copy of the death certificate provided the AP. Linnertz told the AP that she always expected her father to die of the condition, which causes progressive memory and movement loss, but she never thought he would end his days in so much needless and avoidable pain and suffering.

“What the pandemic did was uncover what was really going on in these facilities. It was bad before, but it got exponentially worse because you had the squeeze of the pandemic,” Linnertz said. “If we weren’t in a pandemic, I would have been in there... This wouldn’t have happened.”

The assisted living facility’s parent company, Ebenezer, told the AP: “We strongly deny the allegations made about the care of this resident,” adding that it follows “strict regulatory staffing levels” required by law.

Cheryl Hennen, Minnesota’s long-term care ombudsman, said dozens of complaints have poured in of bedsores, dehydration and weight loss, and other examples of neglect at various facilities, including a report of a man who choked to death while he went unsupervised during mealtime. She fears many more stories of abuse and neglect will emerge as her staff and families are able to return to homes.

“If we can’t get in there, how do we know what’s really happening?” she said. “We don’t know what we can’t see.”

The nagging guilt of unnecessary death is one Barbara Leak-Watkins understands. It was just in February that her 87-year-old father, Alex Leak, went for a check-up and got lab work that made Leak-Watkins think the Army veteran, contractor and farmer would be with her for a long time to come.

You’re going to outlive all of us,” Leak-Watkins remembered the doctor saying.

As nursing home outbreaks of COVID-19 proliferated, Leak-Watkins prayed that he be spared. The prayer was answered, but Leak was nonetheless found unresponsive on the floor at Brookdale Northwest in Greensboro, North Carolina, his eyes rolled back and his tongue sticking out.

After he arrived at the hospital, a doctor there called Leak-Watkins with word: Her father had gone so long without water his potassium levels rocketed and his kidneys were failing. He died two weeks later of lactic acidosis, according to his death certificate, a fatal buildup of acid in the body when the kidneys stop working. For a man whose military service so drilled the need for hydration into him that he always had a bottle of water at hand, his daughter had never considered he could go thirsty.

“The facility is short-staffed...underpaid and overworked,” Leak-Watkins said. If they “can’t provide you with liquids and fluids to hydrate yourself, there’s something wrong.”

The daughter is considering filing a lawsuit but a North Carolina law granting long-term care facilities broad immunity from suits claiming negligence in injuries or death during the pandemic could stymie her efforts. Similar laws and executive orders have been enacted in more than two dozen states.  Critics say the laws are a free pass for neglect.

The owner of the father’s facility, Brookdale Senior Living, said it couldn’t comment on individual cases but that “the health, happiness and wellbeing of each of our residents will always be our priority.”

Around the country, the heartache repeats, not only among families who have already buried a member, but also those who feel they are watching a slow-moving disaster.

In Hendersonville, Tennessee, Tara Thompson was able to see her mother for the first time in more than six months when she was hospitalized in October. The 79-year-old had dropped about 20 pounds, her eyes sunken and her legs looking more like forearms. Doctors at the hospital said she was malnourished and wasting muscle. There were bedsores on her backside and a gash on her forehead from a fall at the home. Her vocabulary had shrunk to nearly nothing and she’d taken to pulling the blankets over her head.

The facility Thompson’s mother lived in had been engulfed in virus outbreaks, with more than half its residents testing positive and dozens of employees infected, too. She never caught it, but shaken by the lack of care, Thompson transferred her mother to a new home.

“It has nothing to do with the virus. She’s declined because she’s had absolutely no contact with anybody who cares about her,” she said. “The only thing they have to live for are their families and, at the end of their life, you’re taking away the only thing that matters to them.”

“Failure to thrive” was among the causes listed for Maxine Schwartz, a 92-year-old former cake decorator whose family had been encouraged prior to the lockdown by how well she’d adjusted to her nursing home, Absolut Care of Aurora Park, in upstate New York. Her daughter, Dorothy Ann Carlone, would coax her to eat in the dining room each day and they’d sing songs and have brownies back in her room. Several times a week, Schwartz walked the length of the hallway for exercise.

When the lockdown began March 13, Carlone feared what would happen without her there. She pleaded to staff: “If you don’t let me in to feed her, she won’t eat, she will starve.”

On March 25, when a staffer at the home sent a photo of Schwartz, Carlone was shocked how thin she was. Carlone was told her mother hadn’t been eating, even passing up her favorite brownies.

Two days later, Carlone got an urgent call and when she arrived at the home, her mother’s skin was mottled, she was gasping for breath and her face was so drawn she was nearly unrecognizable. An hour later, she died.

Dawn Harsch, a spokeswoman for the company that owns Absolut Care, noted a state investigation found no wrongdoing and that “the natural progression of a patient like Mrs. Schwartz experiencing advanced dementia is a refusal to eat.”

Carlone is unconvinced.

“She was doing so good before they locked us out,” Carlone said. “What did she think when I wasn’t showing up? That I didn’t love her anymore? That I abandoned her? That I was dead?”

Before the lockdown, Carlone’s mother would wait by an elevator for her to arrive each day. She thinks of her mother waiting there when her visits stopped and knows the pain of the isolation must have played a role in her death.

“I think she gave up,” she said.

You should never give up.  Plan to age in place.  Learn what aging in place planning entails, develop a plan, and then implement the plan. If you won't for yourself, do it for those whom you love, who may be ravaged by the consequence of there being no plan when it is needed.    

Source: Sedenski and Condon, "Not just COVID: Nursing home neglect deaths surge in shadows," AP NEWS (November 19, 2020) (last accessed 4/15/2021). 

Lawsuit Challenges Nursing Home Liability Protections for Non-COVID Death

Survivors of a former North Carolina nursing home resident are suing the facility where she died in what McKnight's Long-term Care News reports "could be a litmus test for the patchwork of liability protections granted to healthcare providers across the country."

North Carolina is one of nearly 30 states that extended nursing homes legal immunity to shield them from lawsuits during the pandemic. Nursing homes claimed that they need protection since they became ground zero for the contagion.  The industry  lobbied unsuccessfully for national liability protections. 

The family of Palestine Howze is pursuing a case against Treyburn Rehabilitation Center in Durham, NC, where she died in April of non-COVID causes. In many cases, immunity given during the pandemic extends beyond COVID-related cases.
The family’s lawsuit is believed to be the first of its kind to challenge nursing home immunity.” The family claims that Howze developed a pressure ulcer that became infected, and the facility declined to send her to the hospital for treatment citing the pandemic.

North Carolina passed its liability shield law a month after Howze’s death and made it retroactive to March 10, 2020. It runs through the end of the public health emergency, which is currently extended into April but is projected to be lengthened at least through 2021.

“For the Legislature to say that the nursing homes need protection in the middle of a pandemic, not the nursing home patients, is outrageous and it’s unjust,” Elizabeth Todd, the family’s attorney, told NPR.

In October, a federal court ruled that a Pennsylvania nursing home could not claim preemption and federal immunity under the “Public Readiness and Emergency Preparedness Act,” or PREP Act. Although then-Sen. Majority Leader Mitch McConnell (R-KY) argued for federal corporate liability protections, he abandoned the fight in agreeing to a second COVID-19 relief package in December.
ProPublica and The News & Observer first reported on the Howze family’s suit.  A lawyer for Treyburn’s owner, Sovereign Healthcare Holdings, reportedly stated that “the case is defensible, factually and legally, and we would prefer to let the legal process run its course on both fronts.”

Many have expressed concern that protecting institutions from liability will only discourage institutions from behaviors and policies most likely to protect residents.  This is troubling given that more than 40% of COVID-19 death nationwide are attributed to long term institutional care facilities like nursing homes and assisted living facilities. New reports suggest the numbers of institutional care COVID-related deaths is frighteningly under reported. Legal experts have opined that facilities may still be held liable for gross negligence under the orders.  

The Howze case could prove the accuracy of the latter opinion. A North Carolina Superior Court judge must now decide whether to dismiss it because of the immunity statute or allow it to continue, possibly in arbitration. That could take months in a state where courts are already backed up due to the pandemic.

States Grant Nursing Homes Legal Protections in Wake of Covid-19

At least 15 states have granted some lawsuit protection to nursing homes and long-term care facilities as a result of laws or governors’ orders. The move comes as Covid-19 deaths in nursing homes and long-term care facilities have reached more than 20,000, according to the Associated Press.  Unclear is whether the AP is reporting actual reported deaths, or estimated deaths, since many claim that nursing home deaths are under-reported.

Protections vary, but they usually protect nursing homes from simple negligence for injuries, deaths and care decisions during the pandemic. Suits are generally allowed for gross negligence, actual malice and willful misconduct.

States that have enacted lawsuit protection include Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts, Michigan, Mississippi, New Jersey, New York, Nevada, Rhode Island, Vermont and Wisconsin.

Some states have enacted laws and executive orders that immunize health care providers but don’t specifically mention nursing homes. Protection for health care providers will likely also protect nursing homes.

The new law in New York immunizes hospitals and nursing homes from claims of ordinary negligence for providing care during the COVID-19 crisis.  The facilities are also immune from criminal liability.  Immunity does not apply to willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.  The law specifically says any actions taken as a result of staffing shortages or supply shortages are entitled to protection.

Critics say nursing homes should be held accountable for deficiencies, such as staffing shortages and poor infection control, that were a problem even before the pandemic.  Among the critics is Richard Mollot, executive director of the Long Term Care Community Coalition, which advocates for nursing home residents, NPR reports.

“Providing blanket immunity to nursing homes for any kind of substandard care, abuse or neglect is an extremely poor and dangerous idea anytime, and particularly so in regard to COVID-19,” Mollot told NPR.

Cleveland Attorney Accused of Stealing $115,000 from Estate

An 84-year-old Cleveland attorney is accused of stealing $115,000 from the estate of a client, and using the money to pay his bills.

Gerald Cooper is charged in federal court with wire fraud for stealing from the estate of Henry Luke. He used the money to pay credit card bills, sports tickets and mortgage payments, among others, prosecutors allege.

The charges were filed Tuesday in an information, which usually means a guilty plea is forthcoming.

Cooper, a Pepper Pike resident, was admitted to practice law in Ohio in 1957. The Supreme Court of Ohio's website lists him as retired.Gordon Friedman, Cooper's attorney, told a local paper that his client is working toward paying all of the money back.

"He has had an outstanding and remarkable career as a lawyer," Friedman said. "It is unfortunate that this final moment of his practice is kind of a dark mark on his reputation." According to the information:  Cooper filed an application to administer Luke's estate in Cuyahoga County Probate Court. Between February and March 2014, he received $138,397 from three of Luke's bank accounts.

Cooper then took $115,000 from the estate between February to October 2014 by writing a series of checks. The money then went into his personal account.

You can read the entire article here.

Art Collector's Estate Claims Attorney's Drafting Error Cost It $25 Million

The estate of a prominent art collector has sued the attorney who drafted the art collector's will for legal malpractice. The lawsuit, filed in the New York Supreme Court, claims the attorney's error will cost the estate $25 million in taxes.

Collector Robert Ellsworth, whom The New York Times once called “the king of Ming” for his renowned collection of Asian art, hired attorney George Bischof to draft his will. In 2010, Bischof drafted a will that left Ellsworth's estate outright to his friend, Masahiro Hashiguchi, with six charities as contingent beneficiaries. In 2013, Ellsworth changed his will to name Bischof as the sole trustee of a residuary trust. Under the new will, the residue of the estate was left to a discretionary trust that benefited Hashiguchi during his life and then the remainder of the trust was left to charity.

The lawsuit alleges that Bischof drafted the will in a manner that did not allow the trust to qualify as a charitable remainder trust and therefore meet the criteria for the federal estate tax charitable deduction. According to the lawsuit, because of the "negligently and carelessly" drafted trust, the estate will have to pay $25 million in estate taxes that it wouldn't have had to pay if the trust had been properly drafted.

For more about this case from artnet, click here.