Nursing home negligence is a violation of a standard of care, a violation of federal or state laws/regulations, or a violation of a resident’s rights. Nursing home residents deserve better. They have a right to appropriate care that meets professional and legal standards. In this short video, Lance Lourie explains why nursing home litigation is […]
The National Institutes on Health reported, in a post by Dr. Francis Collins, that “One of life’s greatest mysteries is the brain’s ability to encode something as complex as human behavior. In an effort to begin to unravel this mystery, neuroscientists often zoom in to record the activities of individual neurons. Sometimes they expand their […]
Statutory, Regulatory and Administrative References 42 U.S.C. § 1395i-3. Medicare: Requirements for, and assuring quality of care in, skilled nursing facilities 42 U.S.C. § 1396r. Medicaid: Requirements for nursing facilities. 42 C.F.R. § 483.1 to 483.95. Requirements for Long Term Care Facilities. Proposed Rules, 71 F.R. 62957 (10/27/2006), Medicare and Medicaid Program; Fire Safety Requirements […]
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005). Maria Rubio was a nursing home resident suffering from Alzheimer’s disease. While in the nursing home she was sexually assaulted by another resident. Suit followed alleging a failure to protect. Plaintiff alleged that the sexual assault was not a professional negligence claim that was […]
United States ex rel. Szymczak v. Covenant Healthcare Sys., 2006 U.S. App. LEXIS 32112 (7th Cir. 2006). James Szymczak brought a qui tam action against a hospital and nursing home alleging that fraudulent Medicare claims were filed and payment was received for unnecessary, unrendered, misrepresented, and unreimbursable services in violation of the False claims act […]
Ostrom v. Manorcare Health Servs., 2007 U.S. Dist. LEXIS 4106 (D. Mich. 2007). Plaintiff, an Alzheimer’s patient, exited the nursing home on March 22, 2004 through an unlocked door. He was chased by staff as he went into a courtyard. In the courtyard, he tripped over a light post and suffered injury. He was found […]
Rucker v. Indianola Health & Rehab. Ctr. 2006 U.S. Dist. LEXIS 71192 (D. Miss. 2006). Plaintiff filed wrongful death action against a nursing home alleging personal service on February 18, 2005. Default was entered on March 24, 2005. The case was removed to federal court on April 4, 2005. On April 13, 2005, default judgment […]
Russell v. Nat’l Heritage Realty, Inc., 2007 U.S. Dist. LEXIS 640 (D. Miss. 2007). Plaintiff filed suit against Indianola Health & Rehabilitation Center. The Defendant is a mere trade name and the nursing home was operated by National Heritage Realty, Inc. Defendant moved to dismiss the claim, and plaintiff failed to file a response. The […]
Martin v. Lafon Nursing Facility of the Holy Family, Inc., 2007 U.S. Dist. LEXIS 3644 (D. La. 2007). Plaintiff filed suit against a nursing home in State court alleging that Defendant failed to take necessary precautions to protect nursing home residents from Hurricane Katrina. The action was filed as a class action and Defendant removed […]
Atkinson v. Manor Care Health Servs. 2006 Iowa App. LEXIS 744 (Iowa Ct. App. 2006). After instructing the jury, the court realized that no instruction was given on proximate cause. Counsel for both parties consented to the instruction. The court then included it in the written charge delivered to the jury, but it was not […]
Bennett v. Beverly Enters., 2006 U.S. Dist. LEXIS 75561 (D. Miss. 2006). Plaintiff filed suit alleging that Defendants participated in an unlawful scheme to fraudulently convey Beverly’s assets through a merger transaction to avoid paying civil judgments. Defendants moved to dismiss. The court found that Mississippi’s long arm statute did not reach the Defendants and […]
Am. Econ. Ins. Co. v. Jackson, 2007 U.S. App. LEXIS 3232 (8th Cir. 2007). This case involves an insurance coverage dispute after Freddie Mae Burns died at Leland Health Care Center, a 128 bed skilled nursing facility, due to excessive heat. Teresa Johnson, administrator and former director of nursing, was responsible for controlling the HVAC […]
Cline v. Living Ctrs. of Tex., Inc., 2007 Tex. App. LEXIS 2044 (Tex. App. 2007). Jury returned a defense verdict and Plaintiff appealed challenging two issues concerning the exclusion of evidence. Plaintiff contended it was error to exclude evidence that another resident inappropriately touched the resident, as well as evidence of subsequent similar acts. Plaintiff […]
Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007). The court identifies this litigation as a “grudge match.” When counsel spent the first 30 pages of a deposition reviewing Gerstein’s criminal history, the questions got under his skin. After he began answering with “that’s none of your business” counsel began instructing him not to answer. […]
Wilcox v. Gamble Guest Care Corp., 928 So. 2d 695 (La. Ct. App. 2006). Plaintiff appealed after trial court sustained patient liability fund’s exception of no cause of action on Nursing Home Bill of Rights claim and appealed trial court’s awards for damages. Plaintiff had settled with the nursing home and proceeded to trial against […]
Forsythe v. Clark USA, Inc., 2007 Ill. LEXIS 434 (Ill. 2007). Two mechanics were killed at a refinery. Later, their estates filed suit against Clark Refining and Marketing, as well as other defendants including Clark USA. Plaintiffs alleged “that defendant breached a duty to use reasonable care in imposing its business strategy on Clark Refining […]
Lakeridge Villa Health Care Ctr. v. Leavitt, 2006 U.S. App. LEXIS 27338 (6th Cir. 2006). Lakeridge is an Ohio nursing home that participates in Medicare and Medicaid. When it was surveyed, it was found out of compliance with several provider requirements. It was fined a civil monetary penalty of $80,300. The fine was upheld and […]
Marmet Health Care Center v. Brown, 132 S. Ct. 1201 (2012). Marmet began as three seperate cases in West Virginia. In each case, a family member of a nursing home resident signed an admission agreement which included an arbitration clause buried within the text. The Plaintiffs argued the arbitration provision was void because it violated […]
Trust corpus found to be countable ( R.I. Super.) ————————————- Jeanne M. Biagetti established a revocable trust in 1998. According to counsel, it became irrevocable in 2001 when she became unable to manage her own financial affairs. When She applied for Medicaid in 2009, however, the trust was found to be a countable resource and […]
Another Court Rules that NHRA is a toothless tiger (E.D. Mo.) Elgin James filed suit alleging that he developed bedsores due to nursing home negligence. Specifically, he alleged that the nursing home violated 42 C.F.R. § 483.25 which provides that a nursing home must prevent bedsores unless they are unavoidable. Following a line of cases […]
CMS has no obligation to accept an MSP liability allocation without an adjudication on the merits (W.D. Kentucky) In this is Medicare Secondary Payer case, Hadden sought waiver of recovery of a condition payment. After suing to recover for injuries sustained in a collision, Hadden settled for $125,000, in addition to receiving $10,000 in Kentucky […]
Transfer of Partnership Interest Was Not Immediate Gift (TC) —————————————— The tax court was faced with whether gifts petitioners made of limited partnership interests to their adult children during 2000, 2001, and 2002 qualified as annual exclusions pursuant to section 2503(b). The court found that they did not. On September 11, 1997, petitioners formed Price […]
Clear and convincing evidence supported establishment of conservatorship (TN App) —————————————— Petitioners petitioned for the appointment of a conservator for the person and estate of their mother. They alleged that she had dementia, Parkinson’s disease, coronary artery disease, and was unable to make decisions about her health or finances. The Trial Court found by clear […]
A filial responsibility law is one making relatives financially responsible for the care of another. Virtually every state requires parents to support minor children, but most states do not require anyone to support relatives who are over the age of 18. These laws are antiquated and can be traced back to the Elizabethan Poor Law […]
“Right to Live” appeal dismissed as moot (N.J. Super.) —————————————— Rueben Betancourt underwent surgery to remove a malignant tumor from his thymus gland. Although the surgery went well, during recovery, the ventilation tube supplying him with oxygen was dislodged and he developed anoxic encephalopathy which left him in a persistent vegetative state and with other […]
Probate heir has no property right in conservatorship estate (Ga.) ——————————- Opal Stewart was appointed as her father’s conservator. After her father died, she was also his personal representative. Under Georgia law, a conservatorship terminates upon the death of the ward, but the conservator must still petition for discharge. Where the conservator also serves as […]
Cooperative federalism is not license to re-write clear federal rules (Co. App.) Ruth Koehler sued the Department after it terminated her benefits under its Medicaid Home and Community Based Services for the Elderly, Blind and Disabled (HCBS) program. Ruth, an elderly disabled woman, received HCBS as an alternative to nursing home care. Her husband resided […]
Trustee had discretion to assess defense costs to wayward son (Ga. App.) ———————————— Howard McPherson established an irrevocable trust in 1990. At the time, he had four children, Scott, Lisa, Robin, and Eric. An additional son was born to Howard’s second wife after the trust was established. The trust gave the trustee discretion to provide […]
The National Guardianship Association announced a date correction for the following event: Is it Alzheimer’s or Normal Aging Thursday, August 26, 2021 @ 1 p.m. Eastern (12 p.m. Central, 11 a.m. Mountain, 10 a.m. Pacific) Many people confuse normal aging memory issues as early warning signs of Alzheimer’s and dementia. Understanding the differences can prevent a great deal […]
Hogberg v. State Dep’t of Soc. Servs., 2009 Conn. Super. LEXIS 50 (2009). Lynda Hogberg was admitted to a nursing home in September, 2004. Two years later, in September 2006, her husband, a community spouse, filed a Medicaid application. The application was denied in March, 2007. In April, 2007, he filed an appeal. On May […]
James v. Richman, 465 F. Supp. 2d 395 (M.D. Pa. 2006). Robert and Josephine James were married when Robert went to the nursing home. A resource assessment was done and Medicaid determined they had $278,343 in available resources. To reduce their resources, Josephine purchased a $250,000 single premium immediate irrevocable annuity from General Electric Assurance […]
The Deficit Reduction Act of 2005, Pub. L. No. 109-171 (Effective date February 8, 2006). The Deficit Reduction Act of 2005 (DRA) changed the Medicaid eligibility rules significantly. Most of the changes are (or will be) codified at 42 U.S.C. § 1396p. DRA lengthened the look-back from 36 to 60 months; changed the start date […]
Harris v. McRae, 448 U.S. 297 (1980). The Medicaid program created by Title XIX is a cooperative endeavor in which the Federal Government provides financial assistance to participating States to aid them in furnishing health care to needy persons. Under this system of “cooperative federalism,” King v. Smith, 392 U.S. 309, 316, if a State […]
CMS: Centers for Medicare and Medicaid Services. Community Spouse The spouse of an institutionalized spouse. 42 U.S.C. § 1396r-5(h)(2). CSMIA: Community Spouse Monthly Income Allowance. This is the amount of the institutionalized spouse’s income that is diverted, if necessary, to bring the community spouse’s income up to the MMMNA. CSRA: Community Spouse Resource Allowance. DRA: […]
In a study of 11 medical-mystery patients, an international team of researchers led by scientists at the National Institutes of Health and the Uniformed Services University (USU) discovered a new and unique form of amyotrophic lateral sclerosis (ALS). Unlike most cases of ALS, the disease began attacking these patients during childhood, worsened more slowly than […]
The following Stats and reports were released on June 1, 2021, by the National Center for Health Statistics: In recognition of Alzheimer’s and Brain Awareness Month (June 2021), we present estimates from the 2015–2016 National Study of Long–Term Care Providers (NSLTCP). (Note that starting in January 2020, NSLTCP was renamed the National Post-acute and Long-term […]
On June 22, 2021, PBS will air Mysteries of Mental Illness. It explores the story of mental illness in science and society. The four-part series traces the evolution of this complex topic from its earliest days to present times. It explores dramatic attempts across generations to unravel the mysteries of mental illness and gives voice […]
Michael Mogil, creator of Crisp Video, says: We’re on a mission to help over 1,000 law firm owners grow their revenue by $1 million+ ($1 billion+ impact) in the next five years Podcast Link
“It Is Well With My Soul,” written by hymnist Horatio Spafford, is the ultimate statement of trust in God’s goodness. Spafford penned the song in 1873 after numerous losses, including the loss of his four daughters. His faith endured. In this year, as we hope Covid 19 winds down, many have lost far more than […]
On May 31, 2021, as were honor those Veterans who made the ultimate sacrifice to protect our freedom, we also find time to make memories with those we love. These are intergenerational meals where memories beyond value reside. This year, three generations shared hamburgers, hot dogs, baked beans, chili, fresh fruit, banana pudding and pie. […]
When you want to get kids (of any age) excited, you buy donuts. Well, there’s a place I recently discovered in Chattanooga called Duck Donuts. They make the donuts while you watch. Yesterday I ordered a dozen – 2 each of the following: Maple Bacon, Blueberry Pancake, Strawberry, The Beach, Cookies and Cream and Peanut […]
A huge shoutout to Mission BBQ. The Chattanooga, Tennessee location is 1926 Gun Barrel Road, Chattanooga, TN 37421 (423-933-3098). Yesterday, I ordered Brisket and ts was delicious! The best I’ve ever had! Menu Mission BBQ honors Veterans every day. They are closed today, but when they reopen tomorrow, I highly recommend them. I’ve had the […]
Self-care while serving as a caregiver is essential to reduce the risk of burnout. Learn the common symptoms of compassion fatigue and caregiver burnout. This video covers how to set boundaries and expectations. Related Videos:
FRONTLINE and NPR investigate the growing inequities in American healthcare exposed by COVID-19. The documentary examines how pressure to increase profits and uneven government support is widening the divide between rich and poor hospitals, endangering care for the most needy.
The National Institutes of Health recently published its News in Health Special Issue Collecting Popular Stories from past issues that have been reviewed and updated. Topics ranged from healthy eating to parenting and seniors. The articles relating to seniors include: Coping with Caregiving: Take Care of Yourself While Caring for Others Osteoporosis in Aging: Protect […]
Administration for Community Living releases 2020 Profile of Older Americans. The Profile of Older Americans is an annual summary of critical statistics related to the older population in the United States. Relying primarily on data offered by the U.S. Census Bureau, the Profile illustrates the shifting demographics of Americans age 65 and older. It includes […]
David McGuffey did this interview with Elva Combs and Dan Combs several years ago, but it’s still worth a look. It’s a little over 13 minutes long.
On July 29, 2016, the Elder Law Practice of David L. McGuffey hosted a Special Needs Roundtable in Dalton, Georgia. Our Key Note speaker was Hal Wright, author of the Complete Guide to Creating a Special Needs Life Plan: A Comprehensive Approach Integrating Life, Resource, Financial, and Legal Planning to Ensure a Brighter Future. The […]
FRONTLINE and NPR investigate the growing inequities in American healthcare exposed by COVID-19. The documentary examines how pressure to increase profits and uneven government support is widening the divide between rich and poor hospitals, endangering care for the most needy.
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