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Mealey's Elder Law

  • November 20, 2024

    Split Panel Rules No Federal Question In Assisted Living COVID Death, Remand Proper

    ATLANTA — A split panel of the 11th Circuit U.S. Court of Appeals affirmed a judgment of a Florida federal court remanding to state court a lawsuit brought by the personal representatives of a woman who died from COVID-19 in an assisted living facility alleging that the facility failed to prevent the spread of COVID-19, finding that the Public Readiness and Emergency Preparedness (PREP) Act was not a complete preemption statute, nor was any other federal question invoked that would confer jurisdiction on the federal court.

  • November 15, 2024

    Jury Awards $2M In Negligence, Civil Rights Suit Against Decedent’s Care Home

    ALBANY, N.Y. — A New York federal court jury awarded $2 million to a plaintiff who sued her father’s nursing home and related parties for negligence and civil rights violations related to their alleged neglect that resulted in his death after the daughter purportedly found her father at the nursing home on the floor “gasping for breath” with staff not responding to her requests for help.

  • November 11, 2024

    Judge Tosses Breach Of Contract Suit Against MetLife Over $100,000 Lapsed Policy

    FLORENCE, S.C. — A South Carolina federal judge dismissed a breach of contract suit filed against Metropolitan Life Insurance Co. (MetLife) by a decedent’s son seeking death benefits under his father’s $100,000 life insurance policy which ended when his father retired, finding that the son’s breach of contract claim fails because agency granted to him by his father pursuant to a power of attorney (POA) ended upon his father’s death and therefore precluded the son from extending post-retirement coverage on his father’s behalf.

  • November 07, 2024

    9th Circuit Finds ‘Substantial Compliance’ With QDRO Specificity Requirement

    SAN FRANCISCO — Affirming summary judgment in an interpleader suit over a life insurance policy worth $493,000, a Ninth Circuit U.S. Court of Appeals panel said in an unpublished memorandum disposition that the lower court correctly held that a legal separation agreement (LSA) was a qualified domestic relations order (QDRO) under the Employee Retirement Income Security Act.

  • November 05, 2024

    Federal Judge Grants Skilled Nursing Facility’s Motion To Dismiss FNHRA Suit

    HAMMOND, Ind. — A federal judge in Indiana granted a skilled nursing facility’s motion to dismiss without prejudice a decedent’s relative’s lawsuit alleging that it violated the duties imposed upon it under the Federal Nursing Home Reform Act (FNHRA), allowing the plaintiff leave to amend her complaint within 14 days.

  • November 05, 2024

    Federal Jury Finds Granite Installer Fired For Age; Judgment Entered For Worker

    PITTSBURGH — The same day a jury awarded a granite installer compensatory damages and front and back pay on age bias claims and found that the bias was willful, a federal judge in Pennsylvania entered judgment for the worker in the amount of $79,148.50.

  • November 01, 2024

    Split Kentucky High Court Affirms Ruling Upholding Care Home Death Suit Dismissal

    FRANKFORT, Ky. — A split Kentucky Supreme Court affirmed an appellate court ruling upholding a lower court’s dismissal of a wrongful death suit against a nursing home for filing outside the statute of limitations, finding that because a probate proceeding constitutes a special statutory proceeding, the state law making an executor’s appointment effective the date it is signed by a judge “prevails” over a state rule of civil procedure making the effective date when the court clerk filed the order.

  • November 01, 2024

    Calif. Jury: Age Of Pool Company Employee Was Not ‘Substantial’ Reason For Firing

    SAN BERNARDINO, Calif. — A California jury returned a verdict for a pool and spa company, finding that the age of a fired worker, 62, was not “a substantial motivating reason” for his termination.

  • October 30, 2024

    Georgia Panel Vacates Judgment, Remands Probate Case For New Trial

    ATLANTA — Finding that a probate court improperly instructed the jury on spoliation of evidence, prejudicing the decedent’s sister in a dispute over the validity of a will, a Georgia appellate court vacated the judgment in favor of the decedent’s children and remanded the matter for a new trial.

  • October 28, 2024

    New York Panel Reverses Dismissal Order In Care Home Bid For Medicaid Coverage

    BROOKLYN, N.Y. — A New York state appellate court reversed a lower court order dismissing a nursing home’s suit seeking a declaration that a former resident was entitled to chronic care nursing home Medicaid coverage, finding that the defendant, a commissioner of a county department of social services, erred in his “contention that the allegations in the complaint” did not suffice “to state a cause of action.”

  • October 25, 2024

    Kentucky Panel Affirms Denial Of Care Home’s Motion To Compel Arbitration

    FRANKFORT, Ky. — The Kentucky Court of Appeals affirmed a trial court’s denial of a nursing home’s motion to compel arbitration of a negligence claim asserted by the estate of a deceased resident, finding that the resident’s son lacked the authority under a durable power of attorney (DPOA) issued to him to enter into an arbitration agreement on his father’s behalf.

  • October 25, 2024

    Panel: Daughter Did Not Have Authority To Bind Her Mother To Arbitration Agreement

    SALEM, Ore. — The Oregon Court of Appeals held that because a plaintiff did not hold a power of attorney or any other legal authority that permitted her to bind her mother to an arbitration agreement with a care facility in a dispute over negligence and wrongful death claims, a lower court erred in finding that she had authority to agree to arbitration but correctly denied the care facility’s motion to compel arbitration.

  • October 22, 2024

    Split Illinois High Court Affirms Judgment In Row Over Care Homes’ COVID Immunity

    SPRINGFIELD, Ill. — A split Illinois Supreme Court affirmed an appellate court’s decision answering 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 appellate court appropriately reframed the certified question to clarify that immunity applies only to ordinary negligence claims.”

  • October 18, 2024

    Nevada High Court: No PREP Act Immunity For Failure To Set COVID Safety Protocol

    CARSON CITY, Nev. — A panel of the Nevada Supreme Court has denied a petition filed by a skilled nursing facility for a writ of mandamus directing a state court judge to dismiss the complaint of the survivor of a rehabilitation patient who died of COVID-19 contracted while in the facility, holding that neither the Public Readiness and Emergency Preparedness (PREP) Act nor a state COVID-19 emergency directive granted immunity for the facility’s failure to establish an effective COVID-19 safety protocol.

  • October 16, 2024

    Georgia Panel Reverses Undue Influence Summary Judgment In Decedent Assets Case

    ATLANTA — A Georgia appellate court reversed a summary judgment order in a case regarding several transfers of money and property of a decedent, ruling that “the trial court erred by finding there was no evidence of undue influence.”

  • October 15, 2024

    AI Evidence Requires Frye Hearing, New York Surrogate Court Judge Says

    BALLSTON SPA, N.Y. — Given the inherent reliability issues of any evidence created through the use of artificial intelligence, any such use requires not only court disclosure but a Frye hearing, a New York surrogate court judge said while ruling that he could not blindly accept an expert’s AI-based damages calculations.

  • October 15, 2024

    Panel Reverses Judgment For Nursing Home In Death Suit Over Sepsis, Organ Failure

    CLEVELAND — An Ohio appellate court reversed in part and remanded a lower court’s ruling granting summary judgment to a nursing home and related entities in a wrongful death and negligence suit against them related to a former resident’s sepsis and organ failure that led to his death, finding that the lower court erred in its determination that vicarious liability claims cannot prevail against the nursing home and related parties because the complaint did not name as a defendant an individual employee of the nursing home.

  • October 14, 2024

    Borrower’s UCL, Elder Abuse Claims Over Potential Foreclosure Partly Dismissed

    SAN DIEGO — A federal judge in California on Oct. 11 granted in part and denied in part a lender’s motion to dismiss claims brought against it for financial elder abuse and violation of California’s unfair competition law (UCL) by a borrower who claims that during the coronavirus pandemic, the lender obstructed her efforts to modify her loan or obtain a reverse mortgage, leading her to potential foreclosure.

  • October 11, 2024

    Panel: Probate Court Did Not Err In Authorizing Conservator’s Sale Of Property

    LANSING, Mich. — A Michigan appeals panel held that a probate court did not abuse its discretion by authorizing a conservator’s sale of property that was owned by the ward, who had dementia, rejecting the appellant’s assertion that the authorization of the sale resulted in a breach of the conservator’s fiduciary duty to obtain the best price for the property.

  • October 10, 2024

    Federal Judge: Fact Issues Exist In Coverage Suit Over Claims Against Nursing Home

    CHICAGO —A federal judge in Illinois granted in part and denied in part the parties’ motions for summary judgment in a senior care primary liability insurer’s lawsuit challenging coverage for an underlying $934,232 judgment in a wrongful death and negligence action alleging that an insured violated the Nursing Home Care Act by failing to meet the standard of care at its skilled nursing facility, finding that issues of fact preclude summary judgment on certain issues.

  • October 10, 2024

    Nursing Home Counsel Enters Appearance In Suit Over Elopement Injuries, Death

    ALLENTOWN, Pa. — Legal counsel for both a nursing home and the county that operates it on Oct. 9 entered an appearance in a Pennsylvania federal court after a widow and administratrix of her husband’s estate sued the nursing home and the county, asserting claims for wrongful death, survival and deprivation of rights related to the defendants’ alleged failure to supervise the decedent whose elopement purportedly led to the injuries resulting in his death.

  • October 09, 2024

    Judge Rules On Report And Recommendation In FCA Nursing Home Staffing Dispute

    PHILADELPHIA — A Pennsylvania federal judge adopted in part a special master’s report and recommendation in a relator’s qui tam suit against Kindred Healthcare Inc. and its subsidiaries, alleging that they misrepresented their compliance with staffing requirements to receive larger reimbursements from Medicare and Medicaid, overruling the relator’s objections to the recommendation that discovery be limited to medical records related to providing services regarding activities of daily living.

  • October 07, 2024

    U.S. Supreme Court Won’t Review Ruling Affirming Care Home Arbitration Bid Denial

    WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 7 denied certiorari to a California skilled nursing facility and its owner/operator who sought review of a California Supreme Court decision that affirmed the denial of their efforts to compel arbitration of an elder abuse and negligence suit filed against them related to a former resident’s fall and injuries.

  • October 07, 2024

    8th Circuit Affirms Dismissal Of Class Action Alleging Fraud Against Insurer

    ST. LOUIS — The Eighth Circuit U.S. Court of Appeals affirmed a lower federal court’s grant of an insurer’s motion to dismiss a putative class action alleging that insureds purchased long-term care insurance policies that contained optional inflation protection riders based on the insurer’s false representations that their premiums were not expected to increase, finding that their complaint does not allege a material false statement or omission that they relied on and, therefore, fails to allege a claim for fraud.

  • October 07, 2024

    Appeals Court Says Lower Court Failed To Follow Guidelines For Insolvent Estates

    JACKSON, Miss. — A Mississippi appeals court reversed and remanded a lower court’s final judgment ordering payment of creditors’ claims and closing a decedent’s insolvent estate, which gave priority to attorney fee claims but denied other claims, finding that because the lower court failed to provide evidence to show that it complied with insolvent estate statutory requirements, the judgment must be reversed and remanded.