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

Mealey's Elder Law

May 02, 2023
Michigan Appeals Court Reverses Exclusion Of Expert, Summary Judgment Grant

DETROIT — A Michigan appeals court held that a “trial court appeared more concerned with conducting a miniature trial” than adequately determining the admissibility of a causation expert retained by a woman who sued a nursing home for medical malpractice and reversed a grant of summary judgment and remanded the case.
May 02, 2023
Order Compelling Arbitration Affirmed In Wrongful Death Suit Against Nursing Home

TRENTON, N.J. — A New Jersey appellate court affirmed a lower court order compelling arbitration in an executor’s wrongful death suit against a nursing home on behalf of a man who died after a monthlong stay there, finding that despite state law voiding such agreements “as against public policy,” U.S. Supreme Court precedent favoring arbitration requires enforcement of the agreement.
May 01, 2023
Michigan Panel Remands For Court To Award Insurer All Requested Attorney Fees

TROY, Mich. — A Michigan appeals panel affirmed a lower court’s ruling that a professional rehabilitation facility insured failed to provide notice of an underlying wrongful death lawsuit “as soon as practicable” to trigger coverage under a professional liability insurance policy but reversed the lower court’s order awarding the insurer only part of its requested attorney fees and remanded for the lower court to award the insurer $26,581.60 in attorney fees.
May 01, 2023
11th Circuit Affirms Medicare Claim Denial For Failing 3-Day Stay Requirement

ATLANTA — The 11th Circuit U.S. Court of Appeals affirmed a district court order granting summary judgment to the secretary of Health and Human Services (HHS) in a man’s claim seeking Medicare Part A coverage on behalf of his now-deceased mother, finding that the man failed to show that the secretary’s denial of his mother’s claim was arbitrary or capricious or unsupported by evidence.
April 27, 2023
Miss. High Court Says Daughter Not ‘Surrogate’ In Nursing Home Arbitration Row

JACKSON, Miss. — The Mississippi Supreme Court affirmed and remanded a lower court order denying a nursing home’s motion to compel arbitration in a negligence and wrongful death suit brought against it by the daughter of a former resident, finding that the nursing home failed to show that the decedent lacked capacity, which is a requirement for a surrogate to make health care decisions on behalf of the person they are representing.
April 27, 2023
Judge Dismisses FCA Claims Against Hospital In Medicare Fraud COVID Testing Suit

ATHENS, Ga. — A Georgia federal judge on April 26 dismissed relators’ qui tam suit against a hospital and pulmonary medicine practice accused of violating the federal False Claims Act (FCA) and Georgia False Medicaid Claims Act (GFMCA) for seeking payment from Medicare and Medicaid related to purported fraud in repeating COVID testing to create negative results, finding that the relators “failed to state a viable claim for worthless services.”
April 26, 2023
U.S. Supreme Court Hears Arguments On Property Taking For Debt

WASHINGTON, D.C. — In oral arguments before the U.S. Supreme Court on April 26, the attorney representing an elderly woman who brought a putative class complaint after her condominium was seized by a Minnesota county and sold for $40,000 to satisfy a $15,000 tax debt argued that the government “has a constitutional duty to return or pay for the excess.”
April 26, 2023
Class Discovery Request Denied In Care Home Understaffing And Inadequate Care Suit

NASHVILLE, Tenn. — A Tennessee federal magistrate judge denied a motion for specified discovery items filed by estate representatives in consolidated putative class actions against nursing home facilities, alleging that understaffing resulted in residents receiving inadequate services, finding that the discovery requests are not sufficiently related to questions regarding class certification.
April 26, 2023
Panel Affirms Finding That Deed Of Trust Claim Against Estate Is Unenforceable

SEATTLE — A Washington appeals court affirmed a lower court’s order determining that a creditor’s claim against an estate is unenforceable, finding that the lower court correctly concluded, among other things, that it had subject matter jurisdiction, that the claim to a note secured by a deed was time-barred and that the issue regarding an attorney fee award to the estate is moot.
April 25, 2023
Illinois Judge: Unclear Whether Retirement Facilities Incurred Covered Crisis Event

CHICAGO — An Illinois judge granted insurers’ motion to dismiss insureds’ claims seeking a declaratory judgment as to Interruption by Communicable Disease, Contaminated Food/Communicable Disease and Preservation of Property (PP) coverage for their losses incurred by their continuing care retirement facilities following the coronavirus outbreak but refused to dismiss the insureds’ declaratory judgment and breach of contract claims as to the Crisis Management coverage and their breach of contract claim as to the Contaminated Food/Communicable Disease coverage under the primary insurance policies.
April 20, 2023
Judge Dismisses 2 Motions To Vacate Judgment In Nursing Home Negligence Suit

LEXINGTON, Ky. — A Kentucky federal judge dismissed a son’s motion to vacate a judgment dismissing with prejudice most claims in his negligence suit against the nursing home where his father died, finding that there is no statutory change in controlling law to allow the son’s post-judgment motion.
April 19, 2023
Tour Business Granted Summary Judgment On Claims Remaining In Pandemic Impact Suit

PHILADELPHIA — A federal judge in Pennsylvania granted summary judgment to a Philadelphia tourism-based business that had to stop running for a time due to coronavirus pandemic shutdowns on the claims remaining in a lawsuit by an employee who was fired after asking for a raise while the business was still recovering.
April 18, 2023
Pennsylvania Panel Says Long-Term Care Medicaid Appeals Not Timely Filed

HARRISBURG, Pa. — A Pennsylvania appellate court affirmed a man’s appeal on behalf of his mother of an administrative hearings board’s denials of her long-term care benefits, finding that the board correctly affirmed an administrative law judge’s (ALJ’s) determination that the appeals were untimely filed.
April 14, 2023
Federal Government’s Divided Arguments Request Granted In Seized Property Case

WASHINGTON, D.C. — The U.S. Supreme Court on April 14 granted a request by the United States for leave to participate in the April 26 oral argument in a putative class lawsuit by an elderly woman who alleges compensable taking and violation of the excessive fines clause in the Eighth Amendment to the U.S. Constitution after her condominium was seized by a Minnesota county and sold for $40,000 to satisfy a $15,000 tax debt.
April 14, 2023
Split N.Y. Panel Affirms Disability Retirement Denial In Cop’s Chair Tipping Claim

ALBANY, N.Y. — A split New York appellate court on April 13 affirmed the state comptroller’s decision denying a police officer’s application for accidental disability retirement benefits after he was injured by trying to prevent falling when his chair tipped, finding that the determination that the officer “could have reasonably anticipated the hazard . . . was reasonable and supported by substantial evidence.”
April 13, 2023
Nebraska High Court Deems Certification In Estate Dispute ‘Abuse Of Discretion’

LINCOLN, Neb. — The Nebraska Supreme Court vacated a lower court’s order certifying approval of a settlement in an estate dispute between siblings related to a trust created by their deceased parents, finding that the lower court abused its discretion in certifying the settlement and dismissing some of the parties as a final judgment and that because there is no final judgment, the appeal is dismissed for lack of jurisdiction.
April 13, 2023
Split Wyoming High Court: No Divorce Filing On Ward’s Behalf Absent Statutory Power

CHEYENNE, Wyo. — After accepting certification of a lower court’s question as to a guardian or conservator’s power to sue for divorce on a ward’s behalf, a split Wyoming Supreme Court held that because Wyoming law does not permit such divorce filings and absent “statutory direction” regarding applying “the ward’s subjective views on divorce or the objectively-determined best interests of the ward, the court risks usurping the exclusive role of the legislature in establishing divorce, guardianship, and conservatorship law.”
April 12, 2023
Deal For Payment Up To $20.6M Reported In Suit Against SAG-AFTRA Health Fund

LOS ANGELES — Plaintiffs who sued the SAG-AFTRA Health Fund and related defendants under the Employee Retirement Income Security Act over benefit cuts and a merger asked a California federal court for preliminary approval of a class settlement involving a $15 million fund, additional payments totaling up to $5.6 million and nonmonetary relief.
April 12, 2023
United States Seeks To Participate In SCOTUS Arguments Over Condo Seizure

WASHINGTON, D.C. — The United States filed a motion in the U.S. Supreme Court for leave to participate in the April 26 oral arguments in a putative class lawsuit by an elderly woman who alleges compensable taking and violation of the excessive fines clause in the Eighth Amendment to the U.S. Constitution after her condominium was seized by a Minnesota county and sold for $40,000 to satisfy a $15,000 tax debt.
April 10, 2023
Delaware High Court Dismisses Attorney Fee Appeal In Medicare Plan Dispute

DOVER, Del. — The Delaware Supreme Court dismissed an appeal filed by the Delaware State Employee Benefits Committee (SEBC) from a state court order denying Delaware state retirees’ motion for attorney fees in their suit against SEBC over its requirement that retirees switch from Medicare supplemental plans to Medicare Advantage (MA) plans, finding that the “appeal should be dismissed as interlocutory.”
April 06, 2023
Panel Affirms Title Transfer To Son, Findings Of No Elder Abuse, Undue Influence

SAN FRANCISCO — A California appellate court affirmed a lower court’s judgment in favor of a woman’s son and daughter-in-law in the woman’s elder abuse and breach of contract suit against them after the woman and her now-deceased husband transferred title of their home to their son, finding that the lower court ruled correctly in finding, in part, that the woman “did not overcome the presumption that the holder of legal title holds the full beneficial title to a property.”
April 06, 2023
Panel Affirms Judgment Appointing Sister As Guardian As Barred By Res Judicata

AKRON, Ohio — An Ohio appellate court affirmed a lower court’s judgment denying a woman’s motion to terminate the appointment of her sister as guardian for their mother, finding that the guardianship challenge is barred by res judicata, that the existing power of attorney did not support terminating the guardianship and that the guardianship was not in violation of the mother’s right to liberty under the Ohio Constitution.
April 05, 2023
Justice Thomas Rejects Stay Of 11th Circuit Mandate In Care Home Fraud Case

WASHINGTON, D.C.— U.S. Supreme Court Justice Clarence Thomas on April 4 denied an application to stay the 11th Circuit U.S. Court of Appeals’ mandate pending a decision on a man’s upcoming petition for a writ of certiorari of the 11th Circuit’s ruling that a district court did not err in admitting expert opinion testimony against the man convicted for his role in a $37 million health care fraud scheme that began in 1998 and involved bribing physicians to have patients entered into a network of assisted living facilities and skilled nursing facilities that he owned.
April 05, 2023
Professional Services Exclusion Bars Coverage; Insurer Owed $2M Reimbursement

PASADENA, Calif. — The Ninth Circuit U.S. Court of Appeals held that a commercial general liability insurance policy’s professional services exclusion bars coverage for the insured’s liability in an underlying lawsuit alleging negligence, loss of consortium, financial elder abuse and fraud and that the insurer is entitled to the reimbursement of the $2 million it paid to settle the underlying lawsuit.
April 03, 2023
Dismissal Denied In FCA Suit Against Nursing Homes With Claims ‘Adequately Pled’

PHILADELPHIA — A Pennsylvania federal judge on March 31 denied nursing home defendants’ dismissal motion in the U.S. government’s suit against them asserting common-law claims of payment by mistake and unjust enrichment and a False Claims Act (FCA) claim related to alleged “grossly substandard nursing home services to Medicare and Medicaid beneficiaries,” finding that the allegations for common-law claims “are adequately pled” and the FCA claim rises “to the level of gross-negligence necessary to deem [the nursing homes’] services worthless.”