Mealey's Elder Law : Mealey's : Legal News & Analysis

Mealey's Elder Law

September 22, 2023
DOJ Files Statement Of Interest In Putative Class Suit Alleging ADA Violations

BOSTON — After nursing home residents filed a putative class action against state officials in a Massachusetts federal court alleging that state nursing homes are segregating residents with disabilities in violation of the Americans with Disabilities Act (ADA), the U.S Department of Justice (DOJ) filed a statement of interest, asserting that the state’s argument that class members fail to share the same claims discounts “the longstanding, commonplace, and appropriate certification of classes in similar Olmstead cases.”
September 20, 2023
Health Care Provider Loses Bid To Exclude Causation Expert In Deadly Fall Case

PHOENIX — An Arizona federal judge on Sept. 19 denied a motion for summary judgment after finding that a causation expert retained by the estate of an elderly woman who died after a fall while in the care of an in-home health aide can testify.
September 18, 2023
Government Urges High Court To Uphold ‘Bedrock Principle’ Of Chevron Deference

WASHINGTON, D.C. — The U.S. secretary of Commerce, two National Oceanic and Atmospheric Administration (NOAA) officials and the National Marine Fisheries Service (NMFS) (collectively, the government) urge the U.S. Supreme Court in a Sept. 15 brief to not overrule the doctrine of Chevron deference in a challenge to fishery regulations that were upheld by the District of Columbia Circuit U.S. Court of Appeals, writing that doing so could “cause disruption” to complex federal regulatory schemes.
September 14, 2023
Panel Affirms Order Upholding Trust, Removing Trustee In Undue Influence Case

LITTLE ROCK, Ark. — An Arkansas appellate court on Sept. 13 affirmed an order that removed a trustee but upheld a trust created by a 104-year-old woman two months before she died, finding that the lower court correctly determined that the woman had the capacity to execute the trust and did not err in removing the trustee who breached his fiduciary duties.
September 14, 2023
Panel Affirms Judgment Approving Bid For Nonagenarian Care Home Placement

CHICAGO — An Illinois appellate court affirmed a lower court’s judgment that granted a guardian’s request to place his 90-plus-year-old mother in a residential treatment facility for patients with dementia, finding that the lower court’s judgment was supported by evidence that the mother was not receiving the care in her home that “the guardian believed she deserved” and was “significantly declining as a result.”
September 13, 2023
Grandchildren’s Request For Reconsideration Denied In Row Over Grandfather’s Trust

DAYTON, Ohio — An Ohio federal judge denied a motion by grandchildren for reconsideration or clarification of a district court’s order denying their motion for final judgment for their breach of trust and breach of fiduciary duty claims related to the distribution of their deceased grandfather’s trust, finding that their “arguments are nothing more than a disagreement with Court’s findings” and that clarification with regard to expert testimony should be raised in a motion in limine.
September 13, 2023
Judge Dismisses Elder Abuse Suit Against LTC Insurer, Cites Inadequate Pleading

SAN FRANCISCO — A California federal judge dismissed a breach of contract and elder abuse suit filed against a couple’s long-term care (LTC) insurer for its failure to cover the wife’s claim for benefits, finding that though the amended complaint contains “a bundle of allegations that might constitute plausible causes of action with some additional facts,” the amended complaint does not currently suffice to “allow this case to proceed.”
September 11, 2023
Judge Approves Consent Decree In Hiring Algorithm Age Discrimination Case

BROOKLYN, N.Y. — A federal judge in New York on Sept. 8 approved a consent decree resolving Equal Employment Opportunity Commission allegations that a trio of English-language tutoring companies excluded more than 200 applicants on age-related grounds by training their hiring algorithm to identify and reject older applicants.
September 11, 2023
8th Circuit Affirms Remand Of COVID Death Suit Against Care Home

ST. LOUIS — The Eighth Circuit U.S. Court of Appeals affirmed a district court’s order that remanded to state court a wrongful death suit filed against a nursing home and related entities by the son of a man who died after purportedly contracting COVID-19 at the nursing home, finding, in part, that the district court correctly remanded the case because the son’s claims are not preempted under the Public Readiness and Emergency Preparedness (PREP) Act.
September 11, 2023
Panel Says Son Of Decedent Not Bound To Arbitrate In Death Suit Against Care Home

SANTA ANA, Calif. — A California appellate court affirmed a lower court’s denial of a nursing home’s motion to compel arbitration in a negligence and wrongful death suit filed against it by the son of a resident who signed an arbitration agreement as a representative for his mother, finding that the nursing home failed to show that the son had the authority to sign on his mother’s behalf and that his “signatures on the agreement are expressly noted as being in the capacity of a representative.”
September 08, 2023
DOJ Says New Jersey Violated 14th Amendment Rights Of Veterans Homes’ Residents

WASHINGTON, D.C. — After conducting an almost three-year investigation into two New Jersey-run veterans homes, the U.S. Department of Justice (DOJ) on Sept. 7 released a 43-page report finding that it has “reasonable cause” to believe that by failing to provide adequate care during the COVID-19 pandemic, New Jersey violated the 14th Amendment rights of residents at the veterans homes in Menlo Park and Paramus.
September 08, 2023
5th Circuit Affirms Judgments For Hospital, Doctor In Suit Over Ventilator Removal

NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals affirmed a district court’s judgments consolidated on appeal that dismissed parents’ wrongful death suit against a hospital, medical practice and a doctor after their son died when the doctor removed him from a ventilator, finding that the parents failed to show the municipal liability required for a due process violation and that the Texas Advance Directives Act (TADA) “does not create a substantive interest” for the parents or their son.
September 07, 2023
Louisiana Panel Affirms, Finds Transfer-On-Death Designation Form Invalid

GRETNA, La. — A Louisiana appeals court on Sept. 6 affirmed a lower court’s determination that a transfer-on-death (TOD) beneficiary designation of a brokerage account was invalid, finding that the TOD form at issue is not an exception to the state law “general rule that property owned by a decedent at death will pass to her heirs via succession.”
August 29, 2023
Pennsylvania High Court Finds That Trust Created By Voided POA Is ‘Nullity’

PITTSBURGH — The Pennsylvania Supreme Court vacated an appellate court’s decision and reinstated an orphans’ court order determining that an irrevocable trust was invalid because it was created by an agent under a power of attorney (POA) that was deemed void ab initio, finding that “when a court concludes that a power of attorney is a nullity, any action taken under the auspices of the power of attorney is likewise a nullity.”
August 29, 2023
Michigan Panel Affirms Order Granting Octogenarian’s Request To Alter Estate Plan

DETROIT — A Michigan appellate court affirmed a lower court’s orders consolidated on appeal that denied a successor trustee’s petition to register a trust and granted the petition of the octogenarian trustee to revise his estate plan and disinherit his nieces and nephews, finding, in part, that the nieces and nephews failed to show that there were disputed facts regarding the trustee’s testamentary capacity and that their arguments about undue influence are waived because they failed to raise that issue at trial.
August 28, 2023
3rd Circuit Reverses Judgment For Hospice Agency In Medicare Fraud Suit

PHILADELPHIA — The Third Circuit U.S. Court of Appeals on Aug. 25 reversed and remanded a district court’s grant of summary judgment to a hospice provider whose former employees alleged that the provider violated the federal False Claims Act (FCA) by fraudulently billing Medicare in admitting and recertifying patients who were not actually eligible for hospice, finding that while the government’s failure to act for a long period of time is evidence of a lack of the materiality required under the FCA, “it was erroneous to treat this factor as determinative of immateriality.”
August 25, 2023
Judge Dismisses Wrongful Death Suit Against Care Home For Lack Of Jurisdiction

NEW YORK — A New York federal judge dismissed a consolidated case filed by an estate representative who alleged that multiple parties, including a nursing home and legal counsel, conspired to declare his mother incapacitated, take her assets and force her into a nursing home, where she purportedly received inadequate treatment that led to her death, finding that the court lacks subject matter jurisdiction.
August 25, 2023
Florida Jury Returns $2.3M Verdict In Wrongful Death Suit Against Nursing Home

GAINSVILLE, Fla. — A Florida state court jury found a nursing home negligent in a wrongful death suit filed by the estate of a woman who died after living there, alleging that the nursing home’s failure to provide adequate care for the woman’s pressure ulcer contributed to her death, resulting in a $2.3 million jury verdict for loss of companionship and mental pain and suffering for the woman’s husband.
August 23, 2023
Panel: Daughter Allowed To Decline Life-Sustaining Treatment For Comatose Mother

PHILADELPHIA — A Pennsylvania appellate court on Aug. 22 affirmed an order granting a woman the authority to decline life-sustaining treatment for her comatose mother, finding that the lower court correctly applied the appropriate legal standard that permits a decision maker to consider the patient’s wishes regarding life-sustaining measures.
August 22, 2023
Judge Says Public Disclosure Bar Doesn’t Stop FCA Suit Claiming Medicare Fraud

PHILADELPHIA — A Pennsylvania federal judge granted in part motions filed by skilled nursing facilities (SNFs) and a rehabilitative services contract provider to dismiss a qui tam suit against them, alleging Medicare and Medicaid fraud related to billing for rehabilitative therapy that was purportedly not provided, finding that False Claims Act (FCA) claims against the SNFs should be dismissed for failure to show that they knew of the false billing but that the public disclosure bar precludes dismissal of the FCA claims against the contract provider.
August 22, 2023
Split Texas High Court Deems Care Home’s Negligence A ‘Health Care Liability Claim’

AUSTIN, Texas — The Texas Supreme Court issued a mandate finalizing its judgment after a divided court issued an opinion finding that a premises liability claim against an assisted living facility whose employee was helping a resident with her walker when she suffered a fatal injury in a fall constituted a health care liability claim (HCLC) under the Texas Medical Liability Act (TMLA).
August 21, 2023
Employers Settle Claims They Trained Hiring Algorithm To Exclude Older Applicants

BROOKLYN, N.Y. — A trio of companies that provided English-language tutoring for individuals in China settled a case brought by the Equal Employment Opportunity Commission claiming that the employers trained their hiring algorithm to exclude older applicants.
August 21, 2023
Illinois Panel Modifies, Affirmatively Answers Care Home COVID Immunity Question

ELGIN, Ill. — An Illinois appeals court answered in the affirmative a question certified to it from a lower court after modifying it to ask whether a specific executive order issued by the Illinois governor grants “immunity for ordinary negligence claims to healthcare facilities that rendered assistance to the State during the COVID-19 pandemic,” finding that the order “neither overrides nor is inconsistent with the General Assembly’s grant of authority to the Governor” pursuant to the Illinois Emergency Management Act.
August 18, 2023
Panel Says Credit Union Demurrer ‘Improperly Overruled’ In Elder Abuse, Scam Case

RICHMOND, Va. — A Virginia appellate court reversed a lower court’s order overruling a credit union’s demurrer in a negligence and elder abuse suit filed against it by a woman who was scammed into wiring more than $134,000 out of her account without being able to reverse the wires, finding, in part, that the Uniform Commercial Code (UCC) preempts the woman’s claims.
August 14, 2023
Elder Abuse Claim Against Bank Dismissed In Senior’s Suit Over $35,000 Loss

SAN DIEGO — A California federal judge dismissed claims for financial elder abuse, economic-based negligence and violations of the California Consumer Records Act (CCRA) in a man’s suit alleging that Wells Fargo’s failure to safeguard his bank accounts resulted in unauthorized access that depleted his accounts by approximately $35,000, finding that the allegations related to the dismissed claims were conclusory or insufficiently pleaded.