A court last year threw out a case that accused a group of Pennsylvania nursing homes of false advertising, but the state’s highest court this week ruled that the legal action can proceed.
Skilled nursing operator Golden Gate National Senior Care, LLC and its affiliates can indeed face legal trouble over advertisements that promised specific services state officials say were never provided, the Pennsylvania Supreme Court ruled on Tuesday.
The legal publication Law360 first reported the news late Tuesday night.
The case dates back to 2015, when the Pennsylvania Office of the Attorney General (OAG) alleged that the Texas-based Golden Gate made advertising claims it couldn’t back up, specifically regarding patient care. The marketing claims ranged from promises to develop restorative care plans and improve residents’ activities of daily living to assurances that patients would receive plentiful snacks, ice water, and clean linens.
“In contrast to the impression these statements give, the OAG claimed that residents routinely have to wait hours for food, assistance with toiling, changing of soiled bed linens, and other elements of basic care, and sometimes must forgo them entirely,” the Supreme Court noted in its ruling.
The lower court had thrown out the OAG’s claims on a variety of fronts, including a legal theory known as “puffery” — the idea that advertisers are allowed to make far-fetched claims as long as it’s clear to the average person that the company doesn’t literally mean what it says.
But the Supreme Court found that promising ice water and snacks doesn’t amount to puffery, a term that the justices said would be more appropriate for a weight loss program that claimed to cause fat to “melt away in the blink of an eye,” or a beverage marketed as “the complete sports drink.”
“We hesitate to conclude that consumers seeking a nursing home would necessarily find statements promising to provide food, water, and clean linens to be hyperbolic in any respect, or to be vague statements of optimism or intent,” the justices wrote. “To the contrary, for residents of nursing homes, many of whom are physically compromised and require assistance with day-to-day living activities, regular access to these items is essential, and there is no reason to think that a consumer would not take these statements seriously.”
In the initial case, Golden Gate had argued that statements made in resident assessments, bills, and care plans also didn’t rise to the level of false advertising or deceptive marketing practices — another claim that the court dismissed.
The OAG’s allegations, as well as an attempt to recover funds associated with the false advertising claims, can now proceed again in the lower Commonwealth Court, the Supreme Court ruled.
Speaking about the wide-ranging implications of the state Supreme Court reviving the law last year, attorney Brandon Sher — then at the Philadelphia law office of national firm LeClairRyan — told Skilled Nursing News that providers should be careful not to promise services in marketing materials that they can’t actually provide. For instance, Sher noted that it could be dangerous for an operator to say snacks were available “at any time” if there actually isn’t any food available between midnight and 5 a.m.
“They’d have to be more careful about the way they market their businesses, because they’d be opening themselves up for litigation if they don’t actually do what they say they are going to do,” Sher said.
Written by Alex Spanko