Fear of liability or fines can drive institutions to focus on safety, but when it comes to institutions that house older people in North Carolina, that incentive is often lacking.

Relatives who sue to make an assisted living or nursing home pay for a wrongful death find that an elderly person's life has little monetary value compared to a younger breadwinner. And state law allows assisted living homes to operate without liability insurance to cover whatever damages are awarded.

As a result, families have little recourse when they believe a loved one has died because of an error or negligence. The facilities can be fined for substandard care, but the amounts are seldom substantial enough to affect practices, according to a new government study, advocates and some regulators. And lawsuits are expensive, difficult to pursue and often fruitless.

Some families take legal action anyway. The family of Raleigh resident Maynard "Al" Hoffman filed a lawsuit last week against a Raleigh nursing home owned by Rex Healthcare. The suit alleges that the nursing home staff mistakenly gave Hoffman at least eight times the prescribed amount of a powerful pain medication, leading to his death.

The suit brought against the Rex Rehabilitation Center and Nursing Home by Triangle lawyer Mark McGrath asks that Hoffman's daughter, Sheila Goff of Raleigh, be awarded in excess of $10,000 for losses including her father's "society, companionship, comfort, guidance, kindly offices and advice."

Goff said, "It's a matter of their stepping up and taking responsibility for their actions."

Putting a price on a family's loss can be difficult in North Carolina, according to legal experts. Even if a jury were to agree with the allegations that Rex was to blame for Hoffman's death, his estate and attorney will face a burden that often falls on cases of this kind: to prove that the life of an elderly person has economic value in the eyes of the law.

"If you have a breadwinner of five who dies in the prime of life, you can factor that into the damages," said Roger Manus, a Raleigh lawyer in private practice who also represents the Governor's Advocacy Council on People with Disabilities. Manus is not involved in the Hoffman family's case against Rex.

Brian Alligood, a Greensboro lawyer who defends nursing homes, called it "a legal and economic reality that someone who is not working and will never work again will have a lower economic value than someone who is 20 years old and will be working for life."

Fines often reduced

Not only does the legal system offer little recourse to families, neither does the regulatory system. In North Carolina, adult care homes are fined when investigators find they have provided a patient poor care that results in harm or death. But those fines are often reduced when the homes contest the penalties.

In Hoffman's case, Rex Rehabilitation Center was fined $10,000 after state investigators found that Rex violated nursing home regulations on giving narcotic pain medication when caring for Hoffman in May 2006. Rex is appealing.

A Rex Healthcare spokeswoman would not comment on the lawsuit but defended the company's overall record of patient safety, citing a recent accreditation survey that found only a malfunctioning refrigerator as a shortcoming.

As the percentage of people over 65 rises, the way the private and public sectors deal with older residents will become more crucial, according to a Government Accountability Office report released last week.

The report says 20 years of efforts to strengthen federal enforcement have not kept some nursing homes from harming residents again and again, leading some advocates to raise concerns about the treatment and value of older people.

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