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February 15, 1994


The opinion of the court was delivered by: JOSEPH L. MCGLYNN, JR.


 Section 794 of the Rehabilitation Act of 1973 states in pertinent part:

No otherwise qualified handicapped individual . . . shall solely by reason of his handicap be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving federal financial assistance.

 29 U.S.C. § 794 (commonly referred to as § 504).

 The historical facts in this case are essentially undisputed. The issue to be decided is whether Fair Acres Geriatric Center, a county operated intermediate care nursing facility violated the Act when it denied admission to plaintiff, who is afflicted with Alzheimer's disease. Contending that there was a violation, plaintiff offered the testimony of three psychiatrists, none of whom had ever set foot in Fair Acres and had little or no knowledge of its population, staff or resources, who opined that she could be managed at Fair Acres. The Admissions Committee of Fair Acres, *fn1" after observing the plaintiff, consulting members of her family and her attending nurses, reviewing the medical records of her confinement at the Wills Eye Hospital Geriatric Psychiatric Institute (Wills), and after consulting a psychiatrist of their own choice, concluded that it could not meet her needs.

 At the close of the plaintiff's case and at the close of all the evidence, defendant moved for judgment as a matter of law. The court reserved decision on these motions and submitted the issue to a jury. The jury found in favor of the plaintiff. Following the verdict, defendant renewed its motion for judgment as a matter of law. In the alternative, defendant asked for a new trial.

 A. The Motion for Judgment As a Matter of Law

 The plaintiff, Margaret Wagner, is a 65 year old married woman with three grown children, two daughters and a son. In 1988, she was diagnosed as having Alzheimer's disease. As time passed, she became very combative, breaking things and fighting with her husband to the extent that from time to time, he had to shut her in her room. Mr. Wagner was assisted in caring for his wife by his daughters and by visiting nurses, supplied through the County Office of Services to the Aging, who provided care for twenty-seven hours a week. Although the record is not specific as to time, it appears that Mrs. Wagner had been admitted to Haverford Community Hospital for Dilantin toxicity prior to her admission to the Dowden nursing facility in Newtown Square, Delaware County on August 23, 1992. *fn3" After ten days at Dowden, she was transferred to the Wills Geriatric Psychiatry Center operated by Thomas Jefferson University Hospital "in order to more effectively treat her agitation and psychotic symptoms" (Deft. Ex 1, page 14). The number of patients at Wills varies from 15 to 24 and its staff to patient ratio varies from three on four to two on one. During the first week at Wills, plaintiff became very assaultive with respect to the staff and other patients (Deft. Ex 1 at pp. 19, 21-23, progress notes of 9/4/92 and 9/8/92).

 Thereafter, an application for admission to Fair Acres was made and as of September 16, 1992, the Admissions Committee at Fair Acres determined that plaintiff was not then suitable for admission, but placed her application on "hold" pending further information as to her condition. No further information was forthcoming as of October 5, 1992 and; accordingly, the admissions committee denied her application. The staff psychiatrist at Wills, Dr. Kim, agreed that plaintiff was not suitable for nursing home care at the time of the September 16, 1992 application. Later, in the middle of October, 1992, he concluded that she was suitable for such placement despite the fact that the progress notes do not show any significant change in her overall behavioral pattern. The timing of Dr. Kim's change of opinion coincided with the exhaustion of Mrs. Wagner's hospitalization benefits. *fn4" The plaintiff was again evaluated by the Fair Acres Admissions Committee on October 28, 1992. In the meantime, plaintiff had been turned down at several other nursing homes because of the behavioral problems. (N.T. 9/21/93 pp. 35,37 Deft. Ex. 2, p. 10 Wills' social worker's note).

 The Admissions Committee, basically on the recommendation of its psychiatric consultant, Dr. Diwan, determined that the admission of plaintiff was not yet appropriate.

 Entries in the Wills' records show that on October 9, 1992, the treating psychiatrist stated that the patient required 24 hour supervision and on October 14, 1992, it was noted that the patient required constant one-on-one care. A third note dated October 16, 1992 states that plaintiff "became combative in the hallway, grabbing another patient's shirt and attempting to hit and kick staff" and an attempt to place plaintiff in a geri-chair resulted in a staff member receiving a scratch which drew blood. Another scratching incident took place on October 20, 1992 when plaintiff was placed in a geri-chair for her own safety and to protect the staff. Additional incidents reflected in the Wills progress notes that pre-date Fair Acres' October 28, 1992 evaluation include:

10/10/92 - Nursing Staff note: patient labile-laughing to assaultive behavior to crying; one-half of shift in geri-chair, other half with staff walking the halls. 10/11/92 - Nursing Notes 6:00 P.M.: patient very agitated for past three hours, hollering vulgarities; 10/12/92 - 3:30 P.M., patient screaming loudly vulgarities, attempts to calm unsuccessful. Placed in geri-chair for safety. Ambulated with staff in attendance. 5:30 P.M., patient "escalated" became agitative and assaultive. 6:00 P.M., extremely agitated. Punched staff member when attempted to give her a drink. 10/17/92 - Attacked staff member by hitting, scratching, and spitting; 2.5 milligrams inapsine given. Ambulated within eye's view for safety. 10/19/92 - outbursts are angry, negative, labile. 10/21/92 - Patient screaming very loudly at times. Placed in a quite room. Patient became agitative and assaultive.

 See Deft. Ex. 2, p.p. 8, 11; Deft. Ex. 3, p.p. 13, 20-23.

 The Wills records also reflect that during her stay plaintiff received antidepressants and neuroleptics including increasing dosages by injection of the anesthetic inapsine, a drug that none of the other psychiatrists ever heard of for use on a geriatric patient. There was also a record of frequent use at Wills of a "quiet room" where a disruptive patient is confined so as not to distract or upset other patients. Fair Acres does not have a quiet room. All of its rooms have two or more residents in them.

 Plaintiff was evaluated for a fourth time on January 6, 1993. The Wills record shows that her condition had not stabilized. She continued to exhibit the same agitated, assaultive and combative behavior. *fn5" The Admissions Committee's psychiatric consultant noted that plaintiff was still agitated, confused and irritable as late as December 29, 1992, but recommended a further evaluation in six to eight weeks.

 On February 17, 1993, there was a fifth evaluation. Although plaintiff's behavioral problems improved slightly, the Wills records show that she continued to have episodes of combativeness, agitation and assaultiveness, *fn6" the same pattern of behavior that caused her transfer from Dowden to Wills in the first place. The records also reflect that she continued to receive 2.5 milligram of inaspine on an "as needed" basis throughout February 1993. Accordingly, Mrs. Wagner was denied admission to Fair Acres at that time.

 There was no further updating of plaintiff's condition and there was no further request for admission to Fair Acres until Mrs. Wagner's counsel, in a telephone call, demanded that she be admitted, (N.T. 9/21/93, p. 75). When informed that Fair Acres could not meet her needs, *fn7" he threatened to file a lawsuit. Counsel made no effort to provide updated information concerning plaintiff's condition. (N.T. 9/21/93, p. 77).

 On April 12, 1993, almost two months after her last evaluation by Fair Acres, the plaintiff was admitted to a special care unit for Alzheimer's patients at an Easton, Pennsylvania nursing facility, located approximately 85 miles from her home. One of the first reports emanating from the Easton facility showed that plaintiff, daily or more frequently, was physically abusive, "others were bit, shoved, scratched . . ." and engaged in other "socially inappropriate or disruptive behavior." (N.T. 9/21/93, p. 57, Ex. D 12, p. 4).

 Defendant does not dispute that Alzheimer's disease rendered Mrs. Wagner a handicapped person within the meaning of the statute and that a person with Alzheimer's cannot be denied admission on that basis alone. Indeed, as noted above, approximately 60 percent of defendant's population suffer from Alzheimer's or some other form of dementia. Nor is there any dispute that the Fair Acres' staff has the expertise to handle the medical aspects of such patients and that they are even prepared to handle infrequent or occasional outbursts of severe agitation, aggressiveness or assaultive conduct. *fn8"

 But what distinguishes Mrs. Wagner is her behavioral pattern documented in the Wills records demonstrating a continuous course of aggressive, combative and socially inappropriate conduct which frequently required special monitoring and attention as well as increasingly larger doses of drugs including an anesthetic to calm her down.

 The parties agree that, on occasion, nursing home residents have to be transferred to a psychiatric hospital in order to try to stabilize them and reduce the frequency of the periods of agitation, which is the precise reason Mrs. Wagner was at Wills. Indeed, the record shows that ...

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