It’s, unfortunately, not unusual for assisted living facilities to require residents either to pay out-of-pocket for additional care as their needs increase or to move out if they cannot afford such care or choose not to hire the care providers. In the case of married couples who move to assisted living facilities or other senior living communities, they may be forced to live apart when one spouse requires more care than the other. This can be very traumatic for both when they have been together for virtually their entire lifetimes.
The Dodges
This is what happened to Constance and John Dodge. They moved into Brightview Concord River in Billerica in 2014. A few months later, Mrs. Dodge was hospitalized for chronic back pain and discharged to a rehabilitation facility. Brightview refused to allow her to move back unless they hired a private aide, which they did.
In 2015, both of the Dodges moved out and subsequently passed away. Their estates then brought suit against Brightview for breach of contract, negligence, wrongful death, infliction of emotional distress, and violation of the consumer protection statute.
The superior court granted Brightview summary judgment on all counts except the consumer protection claim, for which there was a directed verdict. On appeal, the Massachusetts Appeals Court recently confirmed this ruling in Margaret Donovan, et al., v. Brightview Senior Living, LLC, et al. (Mass. App. Ct. 24-P-125, May 28, 2025).
Contract
On the contract claim, the Dodge family argued that Brightview had told their parents that they could “age in place.” However, this was not included in the residency agreement and the agreement itself stated that it “supersedes all prior agreements and representations.” The superior court found, and the appeals court confirms, that any evidence the estates might bring about representations Brightview made to induce the Dodges to move in would make no difference in the outcome given this clause in the contract.
Negligence
On the claim that Brightview did not fulfill its duty of care to the Dodges, the legal issue was whether their estates needed to present expert testimony on this issue in order to survive a motion for summary judgment. The appeals court again confirms the lower court’s ruling, finding that whether Brightview complied with Massachusetts statutes and regulations and fulfilled its duty of care to the Dodges, “are a matter of ‘specialized knowledge,’ [cite omitted] that is ‘beyond the ken of an ordinary juror’ and therefore requires expert testimony. [Cite omitted.] Because the plaintiffs did not proffer expert testimony on this subject, the allegation of negligence was ‘merely speculative,’ and thus summary judgment [was] properly entered on the negligence claim.”
Emotional Distress
The claim for infliction of emotional distress was somewhat different from the other claims because it was brought by the Dodges’ daughter, Margaret Donovan, for herself in her capacity as agent under the Dodges’ health care proxies, rather than by their estates. It’s for this reason that her claim fails since the court concludes that “there is no basis to conclude that the defendants owed Donovan a duty of care arising out of their relationship with and obligation to care for her parents.”
The consumer protection claim, finally, fails as well because it was based on the other claims.
The Limited Nature of Assisted Living Facilities (in Massachusetts)
This case highlights the necessity of seniors and their families understanding the nature of assisted living facilities and their obligations. They are essentially apartments with various added services to accommodate older residents. They are not nursing homes and are limited in what care they provide.
In fact, in Massachusetts regulations restrict what medical and nursing care assisted living facilities may provide. All facilities offer “medication management,” which involves reminding residents to take their medications and can involve handing the medication to the resident. Some facilities also over limited medication administration, such as applying eye, nose or ear drops. Here’s an explanation of these two programs: https://www.hebrewseniorlife.org/blog/medication-management-assisted-living
The regulations that govern assisted living facilities are more expansive in many other states, permitting or requiring them to provide more extensive care to their residents.
And, of course, all these facilities hire lawyers who draft their residency agreements to protect them from lawsuits. So, read the residency agreement carefully to make sure you know what you are getting into.