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.

County, state and federal regulators say that years of penalties from the state and federal levels have failed to stop potentially deadly practices at some North Carolina facilities. In North Carolina, 18 percent of nursing homes provided care where residents suffered "actual harm or immediate jeopardy." And while that rate fell between 2000 and 2005, it remained higher than the national average.

"That cycle has to be broken," said Gail Holden, Wake County's director of adult and senior services. "Instead of just being crisis-oriented when bad things happen, what you have to do is set a system up where you can succeed."

Holden, a veteran social worker, says the complicated interrelation of business and regulators may even lead to some operators' discounting deaths as a cost of doing business.

Facilities often lack insurance

For families, the current legal and regulatory climate can lead them to feel helpless in the wake of a loved one's death. Rocky Mount resident Jerome Crawford tried, unsuccessfully, to pursue a lawsuit over his brother's death in 2004 at a Nash County retirement center.

A state investigation found that staff at Heritage Retirement Center -- a lower level of care than a nursing home -- failed to give Eddie Crawford CPR when he lay face down choking before he died in 2004.

State regulators fined the center $3,000 but accepted a negotiated settlement of $2,500. In a hearing before the state's Penalty Review Committee, a lawyer for the home said Eddie Crawford would have had little chance of surviving even if he had received CPR.

When Jerome Crawford turned to the legal system, he hit another wall. Just finding a lawyer willing to take the case was difficult. Lawyers often take such cases on a contingency basis, meaning they don't collect fees unless the lawsuit is successful. But they have to see success down the road, and that depends on seeking out -- in advance -- the testimony of an expert witness who can definitively say the loved one's death was caused by a home's negligence.

"They said they needed $5,000 right up front," said Crawford, 55, a car salesman. "That kind of locked me out right there."

Upon further investigation, Crawford learned that the facility didn't carry liability insurance -- something most businesses buy in case they are sued. That left Crawford with nowhere to go to seek damages.

Many facilities lack liability insurance -- no law requires them to carry it. The N.C. Association of Long-Term Care Facilities helped set up a program to help assisted living facilities obtain liability insurance, but hundreds of homes still lack the coverage.