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

Mealey's Elder Law

August 27, 2024
Negligence Claim Against Care Home Dismissed; Ohio Resident Rights Claim Survives

TOLEDO, Ohio — A federal judge in Ohio dismissed as time-barred negligence and punitive damages claims against a nursing home operator but found that the administratrix of a former resident’s estate has plausibly alleged that the facility committed negligent acts or omissions, and therefore, breached its duty of care to the resident in violation of his rights under the state’s resident rights statute.
August 23, 2024
Wisconsin Panel Affirms: Beneficiary Can’t Sue Lawyer Over Failure To Amend Will

MADISON, Wis. — A daughter who is a named beneficiary of her father’s will lacks standing to pursue a negligence claim against her father’s attorney for failing to follow her father’s request to amend the will, a Wisconsin panel held, finding that the daughter failed to meet the narrow Auric v. Continental Cas. Co. exception to the state’s rule that a person lacks standing to sue another person’s attorney for his or her actions.
August 23, 2024
Ohio Nursing And Rehab Will Pay $150,000 To End EEOC Bias, Retaliation Suit

COLUMBUS, Ohio — An Ohio nursing and rehabilitation facility agreed to pay $150,000 and take other actions to end a complaint in a federal court in that state by the Equal Employment Opportunity Commission, which accused the facility of wrongly firing an older male worker due a lack of available work while offering work to younger female workers.
August 22, 2024
3rd Circuit Affirms Judgment For Insurer, Care Home In Medicare, Civil Rights Suit

PHILADELPHIA — The Third Circuit U.S. Court of Appeals affirmed judgment for an insurer and a skilled nursing facility (SNF) in an estate representative’s suit stemming from the Medicare Advantage plan’s failure to cover continued skilled nursing care and the facility’s failure to document a wound that led to the amputation of the patient’s leg, agreeing with the lower court that the representative failed to exhaust all administrative remedies under Medicare and failed to show that the woman’s wound changed during her stay at the facility.
August 22, 2024
4th Circuit Affirms Dismissal For ‘Pesky’ Standing Requirements In Medicare Row

RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals affirmed a district court’s ruling dismissing a putative class action filed by the spouse of a decedent pursuant to the Medicare Secondary Payer (MSP) Act regarding a workers’ compensation insurer’s alleged failure to reimburse Medicare for the decedent’s mesothelioma-related treatment, finding that though the requirements of standing “are often pesky,” the spouse lacked standing in this case.
August 19, 2024
9th Circuit Affirms Remand Of Nursing Home COVID-19 Deaths Lawsuit

SAN FRANCISCO — A Ninth Circuit U.S. Court of Appeals panel on Aug. 16 affirmed the remand to a state court of a lawsuit brought by relatives and successors of 15 people who died in a nursing home during the COVID-19 pandemic, finding no federal jurisdiction exists over their claims against the facility and affiliated defendants for elder abuse, wrongful death and violation of California’s unfair competition law (UCL), and affirmed an attorney fees award against the nursing home defendants.
July 22, 2024
COMMENTARY: Behind Closed Doors: The Hidden Crisis Of Nursing Home Neglect

By Tad Thomas
August 13, 2024
D.C. Circuit Affirms Dismissal In Class Suit Over Limited Medicare Home Health

WASHINGTON, D.C. — The District of Columbia Circuit U.S. Court of Appeals affirmed a district court’s dismissal of Medicare beneficiaries’ putative class action against the secretary of the U.S. Department of Health and Human Services (HHS) over the alleged reduction or refusal by Medicare-enrolled home health providers to provide the beneficiaries with in-home health care, finding that the beneficiaries lack standing to pursue their claims under Article III of the U.S. Constitution.
August 12, 2024
La. Panel Reverses, Finds No Cause Of Action Under Nursing Home Bill Of Rights

GRETNA, La. — Noting that claims under the Louisiana Nursing Home Residents Bill of Rights (NHRBR) are limited to injunctive relief, a state appellate panel reversed a trial court’s judgment overruling nursing facility defendants’ peremptory exception of no cause of action, sustained the exception and dismissed the plaintiffs’ putative class claims against them with prejudice.
August 12, 2024
Approval Of $18.2M Class Settlement Granted In Care Home Understaffing Suit

SANTA ANA, Calif. — A California federal judge granted preliminary approval of an $18.2 million class settlement in a suit over inadequate staffing at memory care and assisted living facilities, also approving the class representatives and class counsel to act on the settlement class’s behalf.
August 09, 2024
D.C. Circuit Tosses Class Certification Denial Appeal In Medicare Coverage Row

WASHINGTON, D.C. — The District of Columbia Circuit U.S. Court of Appeals dismissed an appeal by Medicare beneficiaries of a district court’s denial of class certification, finding that the appellants, who received a favorable ruling from the lower court that deemed their continuous glucose monitors (CGMs) covered under Medicare, lacked standing under Article III of the U.S. Constitution to sue as class representatives.
August 08, 2024
South Carolina Panel Remands Rehab Facility Liability Suit For Arbitration

COLUMBIA, S.C. — A South Carolina appeals court on Aug. 7 reversed and remanded a lower court’s order denying a South Carolina rehab facility’s motion to dismiss and compel arbitration in response to a notice of intent to sue filed by the estate of a former resident, finding that the durable power of attorney (POA) executed by the decedent’s daughter on his behalf gave her the authority to enter into the enforceable arbitration agreement when the decedent entered the rehab facility.
August 08, 2024
Suit Against Long-Term Care Insurer Must Be Remanded, Federal Magistrate Judge Says

FORT MYERS, Fla. — A Florida federal magistrate judge determined that an insured’s declaratory judgment suit against a long-term care insurer must be remanded to state court because the insurer failed to meet its burden of proving that the amount in controversy exceeds the federal jurisdictional minimum amount of $75,000.
August 07, 2024
N.J. High Court Says Documents Not Privileged In Disputes Over Nursing Home Care

TRENTON, N.J.— In consolidated appeals related to injuries sustained by nursing home residents, a unanimous New Jersey Supreme Court reversed and remanded an appellate court’s ruling that found nursing homes’ internal documents were privileged and not discoverable pursuant to the New Jersey New Jersey Patient Safety Act (PSA), finding that “[t]he facilities in these consolidated appeals did not comply with the procedural requirements of the PSA, and, therefore, the disputed documents are not privileged under that statute.”
August 06, 2024
California Panel: Discovery Sanctions Were Proper In Elder Financial Abuse Case

SAN DIEGO — A trial court did not err in issuing discovery sanctions against an attorney, his wife and his law firm in an elder financial abuse dispute brought by the attorney’s mother because the defendants failed to comply with their discovery obligations and deadlines, a California panel found in affirming a trial court’s judgment.
August 06, 2024
Washington Appeals Court Says University Failed To Show Validity Of Woman’s Will

SPOKANE, Wash. — A Washington appeals court panel upheld a trial court’s decision declaring that a woman died intestate because the only surviving copies of her will lacked signatures, finding that a university was unable to show that the woman’s will that bequeathed large portions of her estate to the university was signed.
August 05, 2024
Nashville, Worker Found By Jury To Have Been Subjected To Bias Agree To Dismissal

NASHVILLE, Tenn. — The Metropolitan Government of Nashville & Davidson County in Tennessee and a deputy fire marshal found by a federal jury in that state in May to have been subjected to age and gender discrimination and retaliation and $225,000 for gender bias agreed to dismissal with prejudice and termination of all pending motions including the deputy fire marshal’s June motion for $309,950 in attorney fees.
August 02, 2024
Patient Says Rehab Hospital Ignored Directives, Resulting In Leg Amputation

INDIANAPOLIS — An Indiana man has filed a federal complaint against the operators of his skilled nursing facility, alleging that they failed to follow medical directives that a wound vacuum (wound vac) be placed over his three amputated toes, resulting in his lower leg being amputated.
August 01, 2024
Amici Urge High Court Review Of Ruling Denying Care Facility’s Arbitration Bid

WASHINGTON, D.C. — Groups representing long-term care providers and defense attorneys filed amicus curiae briefs in the U.S. Supreme Court urging it to grant certiorari to review a California Supreme Court decision that affirmed the denial of a skilled nursing facility and its owner’s efforts to compel arbitration of an elder abuse and negligence suit filed against them related to a former resident’s fall and injuries.
August 01, 2024
Texas Panel Again Finds Expert Report Deficient In Nursing Home Negligence Suit

TYLER, Texas — Finding that the causation opinions in an expert’s amended report “suffer from the same deficiencies as his original report,” a Texas appellate panel affirmed the dismissal with prejudice of an estate representative’s health care liability suit against a nursing home where the decedent lived.
July 30, 2024
North Dakota High Court Cites Undue Influence, Reverses Elder Abuse Assets Ruling

BISMARCK, N.D. — In reversing a trial court decision, the North Dakota Supreme Court ruled that the lower court erred in its application of law by not applying the presumption of undue influence in a case involving a woman’s personal use of assets owned by her stepfather, for whom she held power of attorney.
July 29, 2024
Mich. Panel: 401(k), Insurance Can Satisfy Estate Claim In Wrongful Death Shooting

DETROIT — In cases consolidated on appeal, a Michigan appellate court affirmed the portion of a probate court’s order allowing recovery of life insurance proceeds but reversed the portion of the probate court’s order not allowing recovery of the proceeds of a 401(k) account in a wrongful death judgment owed to a mother’s estate against the estate of her daughter implicated in a murder/suicide, finding that both the 401(k) and life insurance proceeds were available to satisfy the judgment.
July 26, 2024
Hospital Appeals Order Reducing Verdict To $4M In Estate’s Wrongful Death Suit

BRONX, N.Y. — A hospital sued for wrongful death and medical malpractice regarding its purported failure to diagnose a fatal medical condition of a 63-year-old man has appealed a New York state justice’s ruling reducing the jury’s verdict against it from $6.1 million to $4 million and ordering a new trial but refusing to set aside the verdict as against the weight of evidence.
July 25, 2024
Hospice Files Defamation Suit Against Anonymous Google Reviewers

LOS ANGELES — Alleging that it is being targeted by a business competitor who has “coordinated” the posting of “fake” negative reviews online, a hospice filed a lawsuit in California state court asserting claims against 1,000 John Does who posted the negative reviews for defamation and violation of California’s unfair competition law (UCL).
July 23, 2024
California High Court Denies Request To Publish Opinion In Wildfire Coverage Suit

SAN FRANCISCO — The California Supreme Court denied a homeowners insurer’s petition to publish an appeals court’s opinion that ruled that it did not breach the policy or the implied covenant of good faith and fair dealing and did not commit financial elder abuse because it paid the proper insureds “all (if not more than)” it had a duty to pay under the policy coverages for dwelling repairs, personal property damage and temporary additional living expenses for their property damage caused by the Woolsey Fire.