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.
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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 […]
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 […]
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 […]
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 […]
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 […]
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, […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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, […]
