Nursing homes that accept Medicare or Medicaid are required to comply with quality of care regulations. Although we have blogged elsewhere on specific nursing home resident rights, the current federal regulations are linked below. 42 CFR Part 483 — Requirements for States and Long Term Care Facilities § 483.5 Definitions. § 483.10 Resident rights. § […]
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In Jones v. Life Care Centers of America (Tenn .Ct. Appeals 2023), a cognitively impaired resident was assisted in the shower by staff. While doing so, the employee took a call from her incarcerated boyfriend which showed the resident’s nude body. The assisted living facility moved for summary judgment after alleging the resident showed no […]
Last year we reported that Talevski v. Health and Hospital Corporation of Marion County (HHC) was headed to the Supreme Court. On June 8, 2023, the U.S. Supreme Court issued its opinion, affirming the Seventh Circuit, and held that the Federal Nursing Home Reform Act (FNHRA) is enforceable under 42 U.S.C. § 1983. Justice Jackson […]
There are many types of “Plaintiff’s cases.” This article focuses on injury cases. Injury cases can be as simple as a car wreck or as complex as a medical malpractice case. Regardless, they generally require four essential elements: duty, breach of duty, causation, and damages. See Calhoun First Nat’l Bank v. Dickens, 264 Ga. 285 […]
There are times when formal “legal” communication is necessary. This post addresses several instances regarding how that can be done. It is not meant to be all inclusive and, in many cases, specific communication rules apply. Beginning a lawsuit: When you begin a lawsuit, a summons must be served on the Defendant(s). Generally, Rule 4 […]
General News Sources: Oldest person in the US reportedly dies at 115 Supreme Court declines to hear case of Delphi retirees over lost pensions Big pensions are nearly 100% funded, the healthiest they’ve been since 2008 financial crisis Pre-tax vs. Roth 401(k): There’s more to consider than you think Widow’s dilemma: When to claim Social […]
A new Medicaid lien case is pending in the U.S. Supreme Court. The question presented is “[w]hether the federal Medicaid Act provides for a state Medicaid program to recover reimbursement for Medicaid’s payment of a beneficiary’s past medical expenses by taking funds from the portion of the beneficiary’s tort recovery that compensates for future medical […]
In CL SNF, LLC v. Fountain (Ga. Supreme Court September 21, 2021), the Georgia Supreme Court reversed CL SNF, LLC v. Fountain, 355 Ga. App. 176, 183 (1) (843 SE2d 605) (2020), finding that the Georgia Guardianship Code grants a guardian authority to enter into a binding pre-dispute arbitration agreement. The Clinch County Probate Court […]
The best way to avoid fraud is to be aware and to do your due diligence when someone asks for or demands money. For example, there are scammers calling, impersonating law enforcement, and telling callers they must pay money or they will be arrested. See City of Portland – Phone Scam Fraud Impersonating Police Office. […]
The following links can be used to research health care providers and, if necessary, to file a complaint with State licensing boards and boards of certification: Complaint and Discipline Process for Nurses (Powerpoint by Georgia Board of Nursing) Contact Information For Filing a Complaint with the State Survey Agency (CMS.gov) Do your research about your doctor or […]
In Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010), the Georgia Supreme Court considered whether arbitrary limits to noneconomic damages in malpractice cases violated Georgia’s Constitution. Those limits were imposed as part of the Tort Reform Act of 2005, and were codified at O.C.G.A. § 53-13-1. In Nestlehutt, Dr. Harvey P. Cole had […]
Harmon v. St. Augustine Manor Plaintiff filed a malpractice and wrongful death action against the nursing home and other defendants alleging that resident’s death was a direct and proximate cause of violations of Ohio law and of 42 U.S.C. § 483, et seq. Defendants removed the action to federal court and Plaintiff filed a motion […]
A jury awarded $500,000 to the resident’s estate for noneconomic damages for predeath pain and suffering, $350,000 to the spouse for predeath loss of consortium and $350,000 for post-death loss of consortium. The trial court reduced the award to $350,000, which was the cap for noneconomic damages in a medical malpractice case. The court of […]
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 […]
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 […]
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 […]
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 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, the estate of a 92 year old resident sued for neglect. The resident was wheelchair bound and had Parkinson’s, Alzheimer’s and osteoporosis. When she began showing signs of abnormality, she was examined and X-rays revealed a non-displaced spiral fracture of the distal tibia in her right leg. She was hospitalized and died a month […]
Summary judgment was affirmed in part and reversed in part. The statute of limitations for underlying acts of negligence applies in a wrongful death suit; thus, Plaintiff claims for negligent acts occurring more than three years prior to the time the lawsuit was filed were barred. The court reversed that part of the summary judgment […]
Plaintiffs moved for JNOV after the jury failed to award wrongful death damages and allocated 70% of damages to the ambulance service that had previously been settled. The trial court modified the award by increasing medical expenses and funeral expenses to reflect the actual damages evidenced at trial. The trial court also awarded 40% of […]
Plaintiff filed suit alleging various claims: negligence; medical malpractice; malice and/or gross negligence; fraud; breach of fiduciary duty; statutory survival claim; and statutory wrongful death. After Defendants answered, Plaintiffs, moved to substitute parties and for leave to amend the complaint. Several incorrect defendants were dismissed. More than a year after the Plaintiffs’ motion was filed, […]
Prior to filing suit, Plaintiff opened an estate for resident in Tallahatchie County. After the suit was filed, Defendants filed a motion to render appointment of the administrator void ab initio, contending the estate should have been filed in Leflore county. Plaintiffs then filed a petition for the appointment of an administrator in Leflore county […]
Two estates filed suit against Defendants, including fictitious parties alleging simple negligence, medical malpractice, malice and/or gross negligence, fraud, breach of fiduciary duty, survival claim, and wrongful death. The Defendants moved to dismiss, which was denied. On appeal, the issues centered on claims against the nursing home administrator. Although a nursing home can be liable […]
Defendants appealed an order compelling response to 195 requests to produce and requiring them to prepare a privilege log. On appeal, the court noted the requests were expansive and unlimited by any time frame. The requests included “all incident, occurrence, and/or accident reports” from all facilities operated by Life Care Center of America, Inc., nationwide; […]
Health Facilities Mgmt. Corp. v. Hughes A management company and a nursing facility appeals from a judgment entered against them in favor of the resident’s estate and her beneficiaries. Following a one-week trial, the jury assessed damages of $38,000, a violation of the resident rights statute with damages of $1.25 million against the management company […]
Alcoy v. Valley Nursing Homes, Inc. Resident, 79 years old, was admitted to nursing home following a stroke. She was unable to communicate verbally and was incapable of making decisions. Four days after admission, she was sexually assaulted, suffering vaginal bleeding and tearing. Her assailant was not identified. She died eight months later. Suit was […]
Raymond Davis, Sr., individually, and Raymond Davis, Jr., as an administrator of the Estate of Elsie T. Davis, sued First Healthcare Corporation d/b/a Savannah Convalescent Center (“Savannah Convalescent Center”), a nursing home, for wrongful death and negligence as a result of Elsie Davis falling out of bed while under its care. Savannah Convalescent Center moved […]
Curtis Peacock, the administrator of the estate of his mother, Nina Peacock, filed suit against HCP III Eastman d/b/a Heart of Georgia Nursing Home and Meadowbrook Management Company for aspects of the care his mother received while living at the nursing home. The complaint, which sought punitive damages, alleged that while his mother was a […]
Resident was sexually assaulted in a mental health facility. Plaintiff brought an action alleging negligent hiring, gross negligence, sexual assault, sexual exploitation, and premises liability. No expert report was filed. Defendants argued the claims sounded in malpractice and moved to dismiss based on failure to file an expert report. Because the duty to protect the […]
Defendant appealed following entry of judgment on verdict and denial of its motion for JNOV. Resident died after he went into a diabetic coma. His doctor had ordered insulin on a sliding scale with his blood sugar to be checked at least daily. Plaintiffs were able to show that on numerous occasions, insulin was not […]
Miller v. Levering Reg’l Health Care Ctr., LLC The resident had a history of falling, was left unattended in a dining hall, and fell, hitting her head. Following the fall, she was given a neurological assessment every four hours. However, testimony at trial showed that the standard of care was every two hours. Further, she […]
A survival action was brought against the nursing home and its corporate parent. A jury found that the nursing home, the parent, and three employees were negligent, awarding $2,204,000. The trial court denied motions for judgment notwithstanding the verdict and Defendants appealed. On appeal the court found there was insufficient evidence to support a verdict […]
B.T. Healthcare, Inc. v. Honeycutt Resident suffered from pressure ulcers at two different nursing homes. After filing suit, Plaintiff settled with one nursing home, but not the other. When the claim went to trial, the jury found that the non-settling nursing home was 51% liable. The Resident was found 49% liable. After entry of judgment […]
On admission to the nursing home, the resident’s granddaughter executed an admission contract that included an arbitration agreement. Later, after the resident died, the resident’s daughter filed a wrongful death action. The trial court denied the motion to arbitrate, finding that Missouri law applied, that it was not pre-empted by the Federal Arbitration Act, that […]
Plaintiff filed a negligence and wrongful death suit against the nursing home. Kindred filed a motion to dismiss or, in the alternative, stay litigation pending arbitration. The trial court denied the motion, finding that the resident’s daughter had no express or implied authority to bind the resident when the arbitration agreement was signed at admission. […]
Maria Rubio was a nursing home resident suffering from Alzheimer’s disease. While in the nursing home she was sexually assaulted by another resident. The suit followed alleging a failure to protect. Plaintiff alleged that the sexual assault was not a professional negligence claim that was time-barred since it was not filed within two years of […]
A medication error is defined as “any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the healthcare professional, patient, or consumer,” according to the National Coordinating Council for Medication Error Reporting and Prevention. The U.S. Food and Drug Administration (FDA) receives […]
