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Mealey's Elder Law

July 12, 2024
Panel Vacates Ruling For Doctor In Negligence Row Over Care Home Resident’s Death

ATLANTA — A split Georgia appellate court vacated and remanded a lower court’s order that granted summary judgment to a radiologist in a suit alleging that he breached the standard of care by incorrectly diagnosing a nursing home resident’s injury as a brain bleed, finding that fact questions remain regarding the issue of causation and whether the doctor provided emergency medical care.
July 11, 2024
Washington Panel Affirms Adult Protection Order Against Octogenarian’s Daughter

SPOKANE, Wash. — A Washington appellate court affirmed a lower court’s grant of a vulnerable adult protection order (VAPO) against one of an octogenarian’s daughters, finding that the lower court did not abuse its discretion in determining that the octogenarian had sufficient notice of the VAPO proceeding regarding her daughter.
July 11, 2024
Care Facility, Owner Seek High Court Review Of Ruling Affirming Arbitration Denial

WASHINGTON, D.C. — A California skilled nursing facility and its owner/operator filed a petition for a writ of certiorari in the U.S. Supreme Court seeking review of a California Supreme Court ruling affirming the denial of their efforts to compel arbitration of an elder abuse and negligence suit filed against the petitioners related to a former resident’s fall and injuries.
July 10, 2024
Judge: No Preliminary Injunction In Case Alleging Securities Fraud, Elder Abuse

OAKLAND, Calif. — A woman who claims that she and her late husband were fraudulently persuaded by a man and his financial institutions to invest in two real estate entities, allegedly violating federal securities laws in the process, failed to show that she would suffer irreparable harm without preliminary injunctive relief, a California federal judge held, denying her motion.
July 10, 2024
UPS Granted Summary Judgment In Workers’ ‘Dead End’ Jobs Suit

OAKLAND, Calif. — A federal judge in California granted summary judgment to United Parcel Service Inc. (UPS) in a case by three female workers who alleged that they were relegated to work in the back and “dead end” job opportunities due to their gender, age and disabilities, finding in part that the workers were not “diligent in their discovery” and failed to present sufficient evidence of their claims.
July 09, 2024
Court Deputy Files Scheduling Order In Malpractice Suit Against Rehab Home

LITTLE ROCK, Ark. — At the direction of an Arkansas federal court clerk, a courtroom deputy filed an order outlining deadlines for discovery and a proposed trial date in a man’s medical malpractice suit against the nursing and rehabilitation center he alleges failed to provide him with the appropriate standard of care for his pressure ulcers, leading to infection and colostomy surgery.
July 09, 2024
Ohio Panel Reverses Judgment For Care Home, Finds Fact Questions Remain For Jury

CANTON, Ohio — An Ohio appellate court on July 8 reversed and remanded a lower court’s ruling that granted summary judgment to a nursing home in a wrongful death and negligence suit against it, finding that questions of fact remain for a jury regarding whether “proper monitoring” of a former resident’s urinary tract infection (UTI) would have prevented her death from sepsis.
July 09, 2024
Split Florida Panel Affirms Order Tossing Bid To Modify Grandparent Visitation

TALLAHASSEE, Fla. — A split Florida appellate court affirmed a lower court’s judgment dismissing parents’ petition seeking to block a maternal grandmother’s court-ordered visitation with their child, finding that the parents failed to provide evidence to show that modifying the grandmother’s visitation was in the child’s best interest.
July 05, 2024
11th Circuit Reverses Summary Judgment In AD&D Row Over Vanished Mountain Climber

ATLANTA — Concluding in part “that a reasonable mountain climber would have recognized a high likelihood of injury or death,” an 11th Circuit U.S. Court of Appeals panel reversed and remanded summary judgment for an insured’s sons in a dispute over accidental death and dismemberment (AD&D) benefits.
July 03, 2024
Judge Approves Death Settlement Against Care Home, Apportions Distributions

ST. LOUIS — A Missouri federal judge on July 2 approved a confidential settlement agreement in a wrongful death suit filed by a decedent’s daughter against a nursing home, finding “that the balance of interests in this case favors” keeping the settlement terms confidential and that the daughter’s proposed apportionment to all three of the decedent’s children “is just and fair.”
July 03, 2024
Death Suit Against Memory Care Facility Assigned To Magistrate For Mediation

JEFFERSON CITY, Mo. — A Missouri federal magistrate judge on July 2 was assigned to alternative dispute resolution (ADR) through a notice of inclusion in a mediation program in a wrongful death suit filed the previous day against a memory care facility and a related entity asserting that the defendants acted negligently in failing to implement safety procedures and provide adequate staffing to prevent a former’s resident’s “avoidable” fall, which purportedly led to his death.
July 02, 2024
11th Circuit Remands For Claims To Be Stayed In Care Home Licensure Class Suit

ATLANTA — The 11th Circuit U.S. Court of Appeals vacated and remanded a district court’s judgment with instructions to stay the claims in a putative class action filed by the representatives of former residents against the Florida skilled nursing facilities where they lived alleging that the facilities fraudulently obtained their licenses, finding that the plaintiffs waived objections to a magistrate judge’s report and recommendation that the district court adopted.
June 28, 2024
High Court Overrules Chevron Deference, Changes Standard For Regulatory Review

WASHINGTON, D.C. — The U.S. Supreme Court on June 28 voted 6-3 to overrule the doctrine of Chevron deference as incompatible with the Administrative Procedure Act (APA) in two cases arising out of federal fishing regulations, changing governing precedent for federal courts reviewing agencies’ regulatory actions.
June 28, 2024
N.J. Jury Awards $600K To Estate In Wrongful Death Suit Over Improper Restraint

NEW BRUNSWICK, N.J. — A New Jersey state court jury returned a $600,000 verdict against a behavioral health facility and its employees related to the death of a patient who incurred blunt force trauma to his head and spine when he was improperly restrained, attributing 35% fault to the mental health technician who restrained the decedent and 65% fault to his supervisor.
June 27, 2024
Parties Settle Wrongful Death Suit Over Alligator Attack In 55-Plus Community

FORT PIERCE, Fla. — The personal representative of the estate of a Florida retirement community resident who died after an alligator attacked her near her home settled a wrongful death suit filed in a Florida state court against the company operating the community, asserting that the woman’s death resulted from the company’s negligence in failing to remove the alligators or to warn of the danger caused by them.
June 26, 2024
Settlement Proposed By Canal Owner In Suit Over Alligators Killing Octogenarian

SARASOTA, Fla. — A nonprofit corporation that owns property containing a canal where alligators attacked and killed an 80-year-old woman filed a notice of serving a proposal for settlement in a Florida state court after the corporation and multiple parties were sued by the decedent’s estate for wrongful death, negligence and strict and vicarious liability related to their failure to remove the alligators that purportedly posed a risk to nearby residents.
June 25, 2024
Texas Panel Affirms Ruling Dismissing ‘Baseless’ Pleading In Probate Dispute

EL PASO, Texas — A Texas appellate court affirmed a probate court’s dismissal of a son’s application to probate a will his mother executed in Mexico after the court previously admitted to probate a will she executed in Texas, finding that the probate court correctly dismissed the son’s application to probate the Mexico will as “baseless in law.”
June 24, 2024
Mass. High Court Affirms Ruling Denying LTC Coverage In Row Over Spousal Assets

BOSTON — A unanimous Massachusetts Supreme Judicial Court affirmed a lower court decision upholding a ruling issued by a Medicaid hearing board denying a nursing home resident’s application for Medicaid long-term care (LTC) benefits, finding that the board correctly determined that the resident failed to meet his burden of eligibility pursuant to state regulations to show lack of cooperation by his wife’s refusal to provide her financial information.
June 17, 2024
Judge Dismisses Hurricane Laura Coverage Suit After Parties Announce Settlement

LAKE CHARLES, La. — A federal judge in Louisiana on June 14 dismissed without prejudice a retirement community insured’s lawsuit seeking coverage for its Hurricane Laura damage after the parties announced they reached a settlement.
June 17, 2024
Decedent’s Heir Seeks Florida High Court Review Of Ruling Affirming Foreclosure

TALLAHASSEE, Fla. — An heir to a man who died during foreclosure proceedings against his property seeks discretionary review from the Florida Supreme Court of a Florida appellate court’s ruling affirming a foreclosure judgment on the decedent’s homestead, asserting that review is warranted because the ruling conflicts with other rulings of the Florida Supreme Court and Florida appellate and trial courts.
June 14, 2024
Panel: Lower Court Wrongly Found Arbitration Binding In Suit Against Care Home

CLEVELAND — An Ohio appellate court on June 13 reversed and remanded a lower court’s ruling that found an arbitration agreement binding for a survivorship claim in a suit filed against a nursing home by the administrator of the estate of a former resident, finding that the lower court erred in requiring arbitration of the claim because the administrator lacked authority to enter into the arbitration agreement.
June 13, 2024
Dismissal Of Bad Faith Claim Denied In Estate Row With Insurer Over ‘Total Loss’

SCRANTON, Pa. — A Pennsylvania federal judge on June 12 denied a homeowners insurer’s motion to dismiss a bad faith claim in a suit filed against it by the estate of a woman alleging that the insurer’s failure to pay a claim for water damage resulted in the property being “a total loss,” finding dismissal inappropriate at this point in the litigation.
June 12, 2024
Massachusetts AG Announces $4M Understaffing Settlement With Care Home Operator

BOSTON — Following an investigation into understaffing at nursing homes operated by Next Step Healthcare LLC, the Massachusetts attorney general announced that specified state agencies and her office, in its largest nursing home settlement, resolved allegations of nursing home neglect regarding Next Step’s failure to protect residents at the 16 nursing homes it operates, requiring Next Step and related parties to pay $4 million and to fund and participate in compliance monitoring to improve staffing levels.
June 11, 2024
Colorado High Court: Privilege Between Physician And Patient ‘Survives’ Death

DENVER — A unanimous Colorado Supreme Court on June 10 discharged a rule to show cause and lifted a stay on a lower court’s in camera review of a decedent’s medical records in a dispute between siblings over the validity of their father’s most recent will, finding that though “the physician-patient privilege survives the privilege holder’s death,” disclosure of the decedent’s medical records is permitted under the testamentary exception if needed for estate administration.
June 11, 2024
Judge Partly Denies Insurer’s Summary Judgment Motion In Hurricane Laura Dispute

LAKE CHARLES, La. — A federal judge in Louisiana held that whether an insured’s submitted additional damages or mitigation expenses may be considered within its original loss event or as a separate loss event is inherently a fact question that is contingent on the state of repairs or mitigation of the insured property when Hurricane Delta occurred, partly denying an insurer’s motion in a coverage dispute arising from Hurricane Laura.