Nursing Home Litigation: Adams v. Gables at Green Pastures Nursing Home, 2006 Ohio 6856 (Ohio Ct. App. 2006)

The nursing home filed a motion for summary judgment, alleging it was a political subdivision entitled to sovereign immunity. Plaintiff’s expert was deposed and concluded that the nursing home deviated from the standard of care by failing to develop and implement an acute care plan for falls, an immediate care plan, any kind of care plan that addressed high risk falls. In a three sentence opinion, the trial court denied the motion for summary judgment. In reviewing the immunity defense, the court of appeals found a three tier analysis applied. First, did the alleged harm occur in connection with a governmental or proprietary function. Second, if it was a governmental function and immunity applies, does an exception exist. If an exception exists, then is there a defense to liability. The parties stipulated that the nursing home is a political subdivision, that the alleged harm occurred in connection with a proprietary function and that its employees were allegedly negligent in carrying out a proprietary function. Thus, the first two tiers of the analysis were satisfied and review of the third tier was appropriate. The nursing home relied on Ohio R.C. § 2744.03(A)(5), contending it was not liable because the injury resulted from the exercise of judgment or discretion. Plaintiff argued the code section did not apply because prevention was required and no plan was put in place. The nursing facility countered that the code section applied because it had a policy relating to fall prevention, however, there was no evidence of a policy. The court of appeals affirmed finding a genuine issue of material fact concerning whether the facility had a policy on fall prevention. The nursing home’s motion for summary judgment on claims arising out of 42 C.F.R. § 483 et seq. was properly denied as moot after plaintiff conceded the regulations do not provide for a private cause of action.

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