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 (31 USC § 3729-31). Szymczak filed the action pro se and the district court dismissed the action, […]
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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 affirmed on appeal. Among the violations cited were “one violation of 42 C.F.R. § 483.25(h)(2), […]
Plaintiffs sued nursing home and case was dismissed because their expert reports failed to comply with Tex. Rev. Civ. Stat. Art. 4590i, § 13.01. Defendants argued that one expert was not qualified and argued that the other was conclusory and did not sufficiently describe a causal link between the negligence and the injury. Plaintiffs argued […]
Resident went to a nursing home after surgery due to a right hip fracture. After developing an upper respiratory infection and a urinary tract infection, he was re-hospitalized. He became unresponsive and was placed on hospice with family agreement. His condition worsened and he died. The family filed a wrongful death suit and Defendants moved […]
Plaintiff served a request to produce for the nursing home’s personnel files. The nursing home objected, contending they included confidential information and introduced the administrator’s affidavit to that effect, arguing that the trial court must conduct an in camera examination of the documents before they were produced. The trial court indicated it would inspect specific […]
The trial court’s order replacing a health care agent was affirmed. Resident, an 88 year old Alzheimer’s patient, was unmarried and had no children. He had named his neighbor as his health care agent. There was evidence that the agent had used a power of attorney to make substantial gifts to himself. Following admission to […]
A Tennessee case decided November 1, 2006, addresses estate recovery for married individuals. In In re Estate of Smith, Mr. and Mrs. Smith had been married for more than 60 years. Mrs. Smith suffered a series of strokes in 2001. She was then admitted to a nursing home in Madison, Tennessee. She predeceased her husband. […]
Resident suffered from Alzheimers’s dementia. While he was in the nursing home, he developed a severe scrotal infection. He was taken to the hospital on September 8, 2003 where hospital personnel described his condition as the worst case of neglect they had ever seen. Resident died on November 4, 2003. Suit was filed on September […]
Resident died in April 2000. Suit was filed in February 2002. The action was removed to federal court but was later remanded. Kindred and a hospital defendant argued that the one-year statute of limitations had expired; Plaintiff countered that they were prevented from filing an action within one year because Kindred was in bankruptcy and […]
The trial court denied a motion to compel arbitration because the agent had no authority to execute the arbitration agreement. On appeal, the court found that the health care agent “had the authority to execute on King’s behalf any waiver, release, or other document which may be necessary to implement health care decisions that Daniel […]
Resident fell and suffered a head wound at nursing home. After getting treatment at hospital, resident returned to the nursing home the same day. Six days later she began vomiting, was taken back to the hospital where she died. In the original complaint, Plaintiff sued NHC, the hospital and doctors. Two years later, new counsel […]
The trial court granted Defendants’ motion for summary judgment due to the limitations period having expired. Plaintiff argued the limitations period was tolled by T.C.A. § 28-1-106. The trial court rejected that argument because the resident had granted a durable power of attorney to Plaintiff prior to becoming incompetent. On appeal, the court found that […]
When defendant answered the complaint it alleged the dispute was subject to arbitration and asked for a jury trial. After four months of discovery, Defendant moved to compel arbitration. The trial court denied the motion ruling that Defendant could not withdraw its jury demand without Plaintiffs’ consent. On appeal, the court found that Defendant could […]
Plaintiff appealed after the case was non-suited. “From November 6, 1998, to December 3, 1998, Appellant was hospitalized at GMC with spinal cord injuries …. On December 3, 1998, he was transferred to HealthSouth for rehabilitation therapy. At some point, Appellant developed pressure wounds on his buttocks and sacrum. Due to the development of an […]
Plaintiffs filed suit for negligence and wrongful death. The nursing home appeared specially and moved to dismiss or in the alternative to compel arbitration. The trial court denied the motion to compel arbitration. The nursing home argued that the Federal Arbitration Act applied because it received Medicare payments originating out of state, complied with Medicare […]
Adams v. Gables at Green Pastures Nursing Home 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, […]
Trial court granted motion to stay pending arbitration. Affirmed on appeal. On appeal Plaintiff argued that the agreement was procedurally and substantively unconscionable. Reviewing the facts, the court observed that “[a]n unconscionable contract clause is one in which there is an absence of meaningful choice for the contracting parties, coupled with draconian contract terms unreasonably […]
Resident died after becoming entrapped between a mattress and bedrail. Nursing home employee provided report to nursing home administrator, which administrator crumpled and put in desk drawer. Later, second report was prepared. During deposition, Plaintiffs asked: “(1) what was Ms. Airhart’s reaction upon learning of the events about Mr. Mathias; (2) what did Ms. Airhart […]
Summary judgment for nursing home was affirmed. Plaintiff was left alone by independent contractor ambulance driver when the driver escorted another patient to her residence. When driver returned, resident was missing, having wandered off. Resident was found 3 days later, having died from hypothermia. Nursing home could not be held vicariously responsible for independent contractor’s […]
In this “short” order, the court of appeals reversed in part denial of defendant’s motion for summary judgment. That portion of Defendants’ motion seeking summary judgment on punitive damages claims was improperly denied because Defendants met their burden on the motion by establishing the absence of any conduct that could be viewed as so reckless […]
Resident, 91 year old allegedly sustained a fractured femur and multiple bruises while she was being transferred from bed to a wheelchair. An agency CNA, Akosah, had been assigned to assist the LPN on duty. After Plaintiff filed suit, the nursing home brought a third-party action against the agency CNA and her employer. Plaintiff moved […]
Defendants’ motion for summary judgment granted and affirmed where experts for Defendants’ gave opinions that pressure ulcers on heels were result of vascular and arterial disease, leaving resident with no pulse in lower extremities. Plaintiffs’ expert offered only conclusory assertions and speculation that an earlier diagnosis and treatment of heel decubitus would have avoided bilateral […]
Depositions of nursing home maintenance supervisor and administrator allowed after Plaintiff demonstrated that other deposed individuals had insufficient knowledge of resident’s injuries and likelihood that the additional witnesses possessed information that was material and necessary.
This is a motor vehicle case where Plaintiff cited Ahlborn, seeking to avoid reimbursing Medicaid. Decedent was injured in a collision on June 30, 2005 and died intestate on July 4, 2005 at age 85. A proposed settlement of $50,000 constituted the defendant’s insurance limits. All medical expenses associated with the collision were paid by […]
In this Medicaid case, the State appealed from a trial court decision. The trial court’s finding that the applicant was eligible for Medicaid was affirmed Reed entered Blanchette Place Care Center in July of 2003. In September, she and her daughter entered into a “personal care contract.” The contract required Reed’s daughter to perform duties […]
Resident’s claim went to the medical review board. The review board’s decision was mailed to an attorney in California, where it was signed for by a postal employee and then was forwarded to an attorney in Louisiana. Under Louisiana law, the limitations period is suspended while a claim is with the review board, but the […]
Summary judgment for defendants was reversed. Resident, a stroke victim, was paralyzed on the right side including his mouth and throat. His condition interfered with chewing and swallowing. At admission, the dietician noted resident’s diet as no concentrated sweets and chop meat. Later it was changed to 1800 calorie diabetic diet, then later to chopped […]
Atkinson v. Manor Care Health Servs. 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 read with the other charges. The jury then returned […]
Plaintiff filed suit for negligence relating to falls in a nursing home but failed to attach the expert affidavit required by O.C.G.A. § 9-11-9.1. Defendants moved to dismiss. Plaintiffs retained new counsel who secured an affidavit from a physician and, based on the amendment, argued that the claim was for ordinary negligence. After considering the […]
Defendants petitioned for a writ of certiorari seeking to quash denial of their motion to dismiss a wrongful death action. Prior to suit, Plaintiff gave pre-suit notice to Arch Creek Nursing Home, but not to other defendants that were sued. See Fla. Stat. § 400.0233. In their motion to dismiss, Defendants argued that each defendant […]
Buie filed a wrongful death action after resident’s death. Buie signed an agreement for arbitration on the line for a legal representative, but not on the line where she would sign for herself. Defendants argued that the case should be dismissed under Rule 12(b)(1) because all claims were subject to arbitration; Defendants moved to compel […]
This case is a false claims case. Plaintiff filed a motion to compel after Defendant asserted an attorney-client privilege regarding conversations attended by Defendants’ Medicare Compliance Officer. During depositions, Defendant argued that Mr. Istafanous was an agent of the legal department and participated for the purpose of identifying risks and determining appropriate actions based on […]
Complete Healthcare Resources Eastern, Inc. sought a declaratory judgment that it was not liable to an insurer in subrogation and that it was not obligated to mediate and/or arbitrate the insurer’s subrogation claim. Complete Healthcare had entered into a management agreement with a nursing home. A claim arose on November 16, 2002, when Bertha Small […]
Insurer sought declaratory judgment against its named insureds, the nursing home, the company owning the realty and the management company after they were all named in a suit alleging they failed to provide adequate care for a resident. The suit alleged negligence, violations of the Arkansas Resident Rights Statute, breach of contract, and wrongful death. […]
CMS found that Hamburg Healthcare, a nursing home, was not in substantial compliance with the Conditions of Participation in the Medicare and Medicaid programs. After numerous surveys and visits where the nursing home was warned each time that its provider agreement might be terminated absent change, CMS terminated the nursing home’s provider agreement. There was […]
Insurer denied coverage because a claim made against the insured during the coverage period was not reported to the insurer until after the coverage period. The court examined the policy and found that reporting the claim to the insurer during the coverage period was not a condition of coverage. The insurer’s motion for summary judgment […]
After Plaintiff filed suit, Defendant filed a motion to dismiss, compel arbitration and stay discovery. The magistrate entered a report and recommendation that the motion be denied. Before the magistrate the plaintiff raised enough evidence to question the nursing home resident’s capacity to enter into an arbitration agreement. The plaintiff also argued that because a […]
Former employee of a nursing home alleged sexual harassment. Her employment agreement included an arbitration agreement. She moved to compel arbitration and the nursing home opposed, arguing plaintiff failed to meet a condition precedent and because plaintiff waived her right to arbitration when she commenced a civil action instead of initiating arbitration. Plaintiff argued the […]
Plaintiff filed a wrongful death action against nursing home alleging the nursing home and its employees were responsible for her father’s death. Essex Insurance filed a declaratory judgment action seeking a determination of its duties of defense and indemnity. Plaintiff in the underlying action against the nursing home moved to dismiss the claim or, in […]
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 granted the motion.
Plaintiff brought suit against Nexion Health Management and Nexion Health at Mount Pleasant contending that her mother was placed in a defective Braun wheelchair lift and that she was thrown from the lift. Plaintiff was required to file an expert report within 120 days of filing the suit. She sought additional time “due to Nexion’s […]
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 was entered in State court. Plaintiff then filed a motion for default in federal court, […]
Nursing home appealed after it failed a survey and CMS threatened to terminate its provider agreement. After immediate jeopardy items were corrected, the sanction was downgraded to denial of payment for new admissions and withdrawal of approval for nurse aide training program. The denial of payment resulted in a loss of $43,600. The nursing home […]
Annie Pickens resided at Defendants’ nursing home from October 8, 2002 until April 19, 2003, dying the next day. A wrongful death action was filed in State court on August 30, 2004; defendants removed it to federal court on January 10, 2005. Defendants moved to dismiss and on February 7, 2005, Plaintiffs agreed to dismiss […]
Lloyds commenced the defense of a wrongful death case against the insured nursing home and various other entities. It did so under a reservation of rights. Later, when on of the employees pleaded guilty to manslaughter, Lloyds filed a declaratory judgment action alleging it had no duty to defend or indemnify because criminal acts committed […]
Moorman v. HQM of Spencer County, Inc. After Plaintiff’s case was removed to federal court, a motion to remand was filed and granted. Plaintiff argued that allegations that Defendant violated 42 U.S.C. § 1396r does not provide a basis for federal jurisdiction because there is no private cause of action relating to nursing home quality […]
Plaintiff filed an action in State court alleging negligence, gross negligence, intentional infliction of emotional distress and fraud. Essex filed its action for declaratory judgment and then filed a motion for summary judgment alleging there was no coverage “because: (1) many of the claims occurred before the first policy took effect and after the third […]
In December, 2002, Centennial filed a Chapter 11 bankruptcy petition in the Northern District of Georgia. Nursing home negligence cases pending around the country were stayed as a result. A plan of reorganization set forth a procedure for addressing the claims against Centennial. On July 14, 2005, Evanston Insurance was given leave to file a […]
Ohio Casualty filed a motion to compel other insurers to produce insurance claims file documents that were allegedly covered by work product doctrine. The action involved a coverage dispute between four insurers following a $78 million verdict in Sauer v. Advocate, Inc. (Circuit Court, Polk County, Arkansas, June 2001). “Advocat was apparently insured from October […]
Carlson was employed by Extendicare and filed suit under the Minnesota Whistleblower statute following an alleged constructive discharge. The court found that, although she would be eligible to bring a whistleblower claim, there was no constructive and dismissed her case. Nonetheless, the case is interesting because it describes Extendicare’s management practices and its “do not […]
