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McLain v. Mariner Health Care, Inc., 279 Ga. App. 410 (Ga. Ct. App. 2006)

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 per se, violations of the Fair Business Practice Act of 1975 and violations of the Deceptive Trade Practices Toward the Elderly Act. Mariner filed a motion to dismiss. The trial court granted the motion as to all four counts with the exception of any claim based on the Bill of Rights, and granted a certificate of immediate review. The court of appeals granted an application for interlocutory review. On appeal, Plaintiff argued that the court erred, ruling on a matter not in controversy, by dismissing claims under the Medicare and Medicaid acts to the extent they could be construed as claims, and by dismissing the negligence and negligence per se claims. The court found that the complaint made no attempt to assert a private cause of action under the Medicare and Medicaid claims and, therefore, dismissal was error. The trial court also erred by dismissing the negligence per se and negligence claims. “Generally, a plaintiff may assert a claim of negligence per se arising from violations of federal or state statutes as long as (1) that plaintiff falls within the class of persons the statute was intended to protect; (2) the harm complained of was the same harm the statute was intended to guard against; and (3) the violation of the statute proximately caused the plaintiff’s injury. The violation of a regulation, no less than that of a statute, can likewise establish that a defendant breached a duty owed to a plaintiff as a matter of law. ‘[I]t is sufficient if the violation is capable of having a causal connection with the injury and [the] damage inflicted. It is not essential that the injury inevitably flow from the violation.'” Citing Brogdon v. National Healthcare Corp., 103 F.Supp. 2d 1322 (N.D. Ga. 2000) and Burney v. 4373 Houston, LLC, 2005 U.S. Dist. LEXIS 34686 (D. Ga. 2005), the court noted that federal statutes may form the basis for a State law claim. “It is obvious that as a resident of the nursing home … [Plaintiff] belonged to a class of persons for whom these statutes and regulations were intended to protect, and that the injuries set forth in the complaint … were among those these same statutes and regulations were designed to prevent. Violations of these statutes and regulations would be competent evidence of Mariner’s breach of duty under a traditional tort claim. Thus, the court erred in dismissing the negligence and negligence per se claims.

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