Insurer filed a declaratory judgment action seeking coverage determination. Underlying suit, filed in State court, alleged sexual abuse by an employee who had disclosed prior accusations of sexual abuse when he was filed. The third amended complaint in State court alleged the resident, 90 years old, was physically abused and/or sexually molested and/or beaten, and […]
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Plaintiff filed suit in federal court, District of Columbia, for wrongful discharge. The nursing home moved to dismiss or, in the alternative, to transfer the action to Maryland. The court granted the motion to transfer after finding that none of the Defendants are in DC, that the nursing home is in Maryland, that the acts […]
After Defendant removed the case to federal court, Plaintiff alleged it should be remanded because the amount in controversy did not exceed $75,000. The Court held that remand is not appropriate unless the Plaintiff can show that, at the time of removal, the amount in controversy did not exceed $75,000. Post-removal documentation regarding the amount […]
When Dan Weeks entered the nursing home, Murry Weeks, his legal representative signed an “an agreement to arbitrate any dispute that might arise between Dan Weeks (“Resident”) and/or Murry W. Weeks (“Legal Representative” and [Greenwood Health and Rehabilitation Center](“Facility”)(“Facility” includes the particular facility where the Resident resides, its parents, affiliates, and subsidiary companies, owners, officers, […]
Manor Care purchased a policy from First Specialty for coverage of “triggering events” in excess of $500,000 up to an aggregate amount of $25,000,000. The dispute concerned “1) what constitutes a triggering event under the policy; 2) whether a lawsuit is a single “triggering event” for purposes of the policy or if each separate injury […]
Plaintiff originally filed a complaint in federal court alleging negligence that resulted in pressure ulcers and amputation of Plaintiff’s right leg. Manor Care later filed a third party complaint, after which, Plaintiff filed a separate action in State court against the third party defendants in the federal case. Manor Care moved the court to abstain […]
Defendants in a State court action filed a declaratory judgment action in federal court seeking a declaration as to the validity of an arbitration agreement. The resident’s sister had signed the Agreement for Arbitration. The court found it clear that resident could not have signed the agreement herself due to HIV, CVA with right-side hemiparis, […]
Defendant sought dismissal of Plaintiff’s case due to plaintiff’s failure to file an expert report within 120 days as provided in the Texas statute. The magistrate recommended denial of Defendant’s motion. The magistrate found that the Texas disclosure rule was a discovery rule and that in a diversity case, the federal rules of discovery applied.
Plaintiff filed its action on April 13, 2004. Plaintiff was a resident at the defendant nursing home from January 8, 2002 through March 4, 2002. The applicable statute of limitations was two years from the date of discovery. The court found that Plaintiff should have known of the resident’s injuries not later than March 4, […]
Plaintiff filed suit, settled for $87,487.85 , and then secured a final judgment in State Court. Later, when plaintiff sought to garnish the insurance policy, the insurer removed the action to federal court. Plaintiff sought to remand the case to State court, citing 28 U.S.C. § 1332(c)(1), which provides that in a direct action against […]
Defendant moved to compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 4. Under 5th Circuit precedent, the court must first determine whether the parties agreed to arbitrate and whether the dispute in question falls within the scope of the agreement. Here, the resident’s daughter signed the arbitration agreement without a power of […]
This is a reinsurance case involving Laurier, an insurer of Extendicare, and its reinsurance carrier, Employers. In 2002 Laurier, Extendicare’s insurer, settled a wrongful death case and allocated $2.5 million to alleged negligence at Extendicare’s Alpine location during 1996. Laurier sought indemnification from Employers which was denied. Employers claimed Laurier’s failure to give prompt notice […]
A wrongful death case was removed to federal court on diversity grounds. Defendants alleged fraudulent joinder. Plaintiff’s motion to remand was granted. The court found that the removing party bears the burden of showing fraudulent joinder. In particular, Defendant argued there was no reasonable possibility that Plaintiff could recover against the Mississippi defendant, citing the […]
Plaintiff filed a State court action alleging nursing home negligence at a home controlled by JPMorgan. When admitted, Plaintiff’s mother filed a conspicuous arbitration clause, introduced in bold-faced font stating “ARBITRATION – PLEASE READ CAREFULLY.” After the State court action was filed, JPMorgan filed a federal action to compel arbitration. The only argument considered was […]
On November 7, 2002, when resident was admitted to a nursing home, her daughter signed an agreement for arbitration. On August 23, 2004, a nursing home negligence case was filed in State court. Mariner then filed a federal action to compel arbitration. Fifth circuit precedent indicates the court should determine (1) whether there is a […]
Nursing Home Litigation: Labor Dispute Respondent purchased a nursing home on March 31, 2004. On July 1, 2004, it began operating the facility. Its nurse aides, nurse assistants, dietary employees, activity assistants and housekeeping employees were represented by a union. The respondent refused to recognize the collective bargaining representative. The union then filed a complaint […]
Lillian Guernsey’s conservator brought suit alleging that Lillian was sexually assaulted by another resident at a personal care home. The case was tried to the court. The defendant conceded liability; after one defendant admitted negligence, Plaintiff moved for a directed verdict which was not opposed. The court found that compensatory damages were $300,000 and punitive […]
Plaintiff’s estate brought suit against Life Care’s Bothell facility after she slipped out of a shower chair, was injured and later died as a result of those injuries and other pre-existing conditions. Plaintiff sought copies of incident reports regarding falls, transfers and assists for the three years prior to Plaintiff’s fall that Defendant compiled pursuant […]
Adams v. Pathfinder Healthcare Defendant removed State Court action for negligence alleging there was federal jurisdiction because a federally appointed receiver was operating the nursing home. Relying on Gay v. Ruff, 292 U.S. 25 (1934), the court found that federal appointment of a receiver, without more, does not confer federal jurisdiction. Plaintiff’s motion to remand […]
Plaintiff contested Medicare’s claim under the MSP statute. Initially counsel informed Medicaid by letter that there was no duty to reimburse Medicare due to the holding in Thompson v. Goetzmann, 315 F.3d 457 (5th Cir. 2002). Medicare responded that even if Goetzmann was relevant, it would not apply to beneficiaries residing outside the Fifth Circuit. […]
The government prosecuted a case under 18 U.S.C. § 1347, alleging violations of 42 C.F.R. § 483.15 and 42 C.F.R. § 483.25. Defendants Marth Bell and Atrium I Nursing and Rehabilitation Center were found guilty. In a post-trial motion, Defendants argued that the standards of care in 483.15 and 483.25 are vague and ambiguous. The […]
Plaintiff filed suit in State court against Centre Pointe HRC, SBK Capital and Life Care Centers of America, alleging violations of Florida statutory rights. Defendants removed the case to federal court based on diversity. After Plaintiff filed a motion to remand, all defendants consented to remand. The motion before the court was for attorney’s fees, […]
Facility sought to compel arbitration after suit was filed. Resident was alone when admitted to the facility. He was illiterate, but purportedly executed an arbitration agreement. Although illiteracy alone will not invalidate an arbitration agreement, the Estate contended that the resident did not place the “X” on the agreement and the facility employees could not […]
Defendant moved to strike Plaintiff’s count alleging a violation of the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110a et seq. The allegations pled did not support the claim since they were general allegations of false reporting, and did not concern entrepreneurial or business aspects of running a nursing home. The motion was […]
Suit was brought in the name of a deceased nursing home resident for negligence and carelessness, alleging violations of 42 C.F.R. § 483.25(h)(1) and because Defendants did not prevent accidents. Defendant brought it to the court’s attention that the resident was deceased and moved to dismiss. Plaintiff moved for an extension of time to respond […]
Estate brought a claim for wrongful death and elder abuse against a nursing home. After hearing, the trial court sustained a demur to the elder abuse claim, finding the estate failed to allege conduct amounting to recklessness. The Estate appealed. The court found that “the estate’s complaint alleges (1) the defendants were aware that Gibson […]
Plaintiff filed suit for nursing home negligence alleging multiple causes of action. Defendant filed a demur which was granted as to “the causes of action for willful misconduct, elder abuse, and intentional infliction of emotional distress. The court struck the punitive damage allegations and prayer for non-economic damages, and denied a motion to add punitive […]
Defendant doctor was in charge of resident’s care at nursing home. Resident’s nutritional status was compromised, dropping approximately 30 pounds and pressure ulcers progressed from Stage II to Stage IV; when resident was taken to the hospital shortly before death, she was malnourished. Doctor filed an expert affidavit stating that he met the standard of […]
Beverly petitioned for a writ of certiorari and a writ of prohibition after being ordered to post a $25,000,000 supersedas bond before appealing an order for class certification. Plaintiff had argued that Beverly was unstable and that the class should be protected during appeal. The court found that requiring a bond prior to judgment is […]
Supreme Court reversed after trial court entered an order striking and dismissing Plaintiff’s complaint with prejudice for failing to properly revive the claim after the resident’s death. Plaintiff had filed a suggestion of death, motion for appointment of special administrator and request for order substituting parties, which was granted, but did not seek a formal […]
In this hospital fall case, after a jury returned a verdict for the estate, Defendants appealed four evidentiary rulings. First, defendants objected to the introduction of statistical evidence consisting of bar graphs in a nursing journal article and information kept by Defendants regarding other patient fall cases. The objections were not preserved because Defendants did […]
Plaintiff sued the nursing home for injuries suffered by and wrongful death of her father. The complaint alleged violations of federal regulations and State statutes and regulations concerning nursing home care, including those relating to Medicare and Medicaid, and the Georgia Bill of Rights for Residents of Long-Term Care Facilities. The complaint alleged negligence, negligence […]
A jury trial was held to determine whether Mildred Hilton had testamentary capacity to execute a new Will. After the jury found she lacked capacity, the trial court determined that the verdict was incorrect and entered judgment notwithstanding the verdict. Alternatively, the judge also entered an order granting a new trial. Under Georgia law, a […]
Nursing home moved to dismiss or, in the alternative, to transfer the case from Madison County to Jersey County based on forum non conveniens. The nursing home was located in Jersey County, but the owner also owned a facility in Madison County. Defendants claimed numerous witnesses would be inconvenienced unless the case was transferred and […]
Appellant was a mentally retarded girl, who had been placed under a guardianship after a finding that she lacked capacity to exercise good judgment with regard to her person, assets and financial affairs. While at a private facility, Appellant had sex with two men. Initially she reported that she was raped, but later reported she […]
Diversity case where RLI sued PIIL and USF to recover part of what RLI paid to settle a nursing home case. The nursing home and all three insurance companies settled the underlying claim in 2003 for $3.9 million. The issue on summary judgment was allocation of the settlement amount among the insurers. Applying Texas law, […]
Forfeiture action by the government where it was alleged that cocaine was sold at a nursing home. One witness “observed the Isleys supply people living in the home with cocaine and alcohol in exchange for the endorsement of their monthly government check to the Isleys.” The government filed a motion for summary judgment under the […]
Plaintiff brought wrongful death action against assisted living facility. During the admission process, resident’s daughter signed admission papers without a power of attorney and without discussing it with the resident. After suit was filed, the facility filed a motion to compel arbitration. The matter was referred to the magistrate. The court found no evidence that […]
At admission to assisted living facility, daughter who was completing documents indicated she wanted to have residency agreement reviewed by an attorney. The facility employee said that would be “pointless” because the facility would not accept any changes and resident would not be allowed to move in without a signed agreement. The agreement provided for […]
Glover v. Liggett Group, Inc. Plaintiff brought a claim under 42 U.S.C. § 1395y(b)(3)(A) to recover funds for the Medicare program attributable to cigarette smoking. The trial court dismissed the claim. On appeal, the court found that “[u]ntil Defendants’ responsibility to pay for a Medicare beneficiary’s expenses has been demonstrated (for example, by a judgment), Defendants’ […]
CMS sought to impose a civil monetary penalty on the successor of a fined nursing home where the successor accepted assignment of the provider agreement rather than going through the certification process for a new provider agreement. This case includes a detailed discussion of the administrative process through which civil monetary penalties are imposed and […]
A community spouse purchased an actuarially sound single-premium irrevocable annuity for $250,000 for the purpose of spending down excess assets so her husband, a nursing home resident, would qualify for Medicaid. Pennsylvania denied eligibility, contending that the annuity was an available asset and that Medicaid eligibility could not be established until that asset was spent […]
The district court granted insurer’s motion to defense where insurer claimed it had no duty to defend case where the only potential claims are by putative class members until the class is certified. The district court was reversed on appeal. Applying Florida law, the Court held that the duty to defend is determined from the […]
A physician brought a qui tam action against two other physicians and several health care providers after a nurse showed him a progress note in a nursing home chart allegedly documenting a physician’s (Lachman’s) review of the chart. The problem was that the resident had died several weeks earlier. After seeing that record, the relator […]
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. Counsel gave no reason for the instruction other than […]
This is not a nursing home case. Justice Scalia, writing for the Court, framed the issue as whether a court or an arbitrator should consider a claim that a contract containing an arbitration agreement is void for illegality. Customers of a check cashing company had signed agreements including an arbitration clause. A class of customers […]
In Arkansas Dept. Health and Human Services v. Ahlborn, 547 U.S. 268 (2006), Heidi Ahlborn suffered severe and permanent injuries at age 19 as a result of an automobile accident. She was left partially brain damaged and unable to complete her education. Medicaid determined she was eligible for benefits and paid providers $215,645.30 on her behalf. Later, […]
Suit was filed after a CNA failed to check the water temperature before bathing resident; resident was burned and died 3 days later. Suit was settled for $1.5 million. One of Defendant’s insurers paid $200,000; Defendant paid the balance of $1.3 million because its other insurer was in liquidation. Defendant then sought indemnification from the […]
“Plaintiff presented expert medical testimony that the cause of Mr. Alston’s death was septicemia, or an infection which entered into his bloodstream. Plaintiff argued the cause of the infection was the pressure sores which defendant negligently failed to prevent. Defendant presented conflicting expert medical testimony that the cause of death was Alzheimer’s dementia, a terminal […]
Plaintiff’s suit against the nursing home was dismissed for failing to comply with the pre-suit notice requirement in W. Va. Code § 55-7B-1, et seq. The decision was affirmed. Any possible error was harmless because the dismissal was without prejudice and Plaintiff has the right o refilled after compliance with the statute.
