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Nursing Home Cases: Motion Practice

Martin v. Lafon Nursing Facility of the Holy Family, Inc., 2007 U.S. Dist. LEXIS 3644 (D. La. 2007). Plaintiff filed suit against a nursing home in State court alleging that Defendant failed to take necessary precautions to protect nursing home residents from Hurricane Katrina. The action was filed as a class action and Defendant removed it to federal court under the Class Action Fairness Act. The Act conveys federal jurisdiction where there is minimal diversity, at least one plaintiff and one defendant from different states, and the amount in controversy exceeds $5,000,000, exclusive of costs and interest. However, the court must decline jurisdiction where more than two-thirds of the members of the proposed plaintiff class are citizens of the original filing state and at least one defendant against whom significant relief is sought is from the original filing state, the injuries occurred in the original filing state, and no other class action asserting the same or similar facts has been filed against the defendants in the last three years. Plaintiffs moved to remand the case to State court, but provided no proof that two thirds of the plaintiffs were from Louisiana. They argued that the Defendants should be compelled to provide that information since they had the records. The Court disagreed, finding that Plaintiff had the burden of proof. The court denied the motion to remand, although in footnote thirteen, the court said “plaintiffs will still have the opportunity to file a motion to remand if later facts are discovered relevant to the Court’s jurisdiction.”

Note: When seeking remand based on an exception to the Class Action Fairness Act, do your discovery before you file the motion. One way to handle this might be by filing Requests to Admit since a frivolous denial of a request to admit would shift fees.

Moorman v. HQM of Spencer County, Inc., 2006 U.S. Dist. LEXIS 60198 (D. Ky. 2006). 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 of care standards. The court next applied the “total activity” test to find an absence of diversity.

Note: Plaintiff’s argument that the federal quality of care standards are not applicable is dangerous. Although they may not form the basis for a private cause of action, many courts since Brogdon have held that the quality of care standards are appropriate in determining the standard of care. The decision here is not at all clear concerning what relevance, if any, the standards will play in subsequent litigation.

Lewis v. Delta Health Group, Inc., 2006 U.S. Dist. LEXIS 50111 (D. Miss. 2006) 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 in controversy is only accepted to clarify the jurisdiction amount if it was ambiguous. Because a final judgment disposing of certain claims had been previously filed in State court for $1,000,000, Plaintiff’s motion to remand was denied.

Williams v. Nat’l Heritage Realty Inc., 2006 U.S. Dist. LEXIS 39889 (D. Miss. 2006). 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 lack of specificity of Plaintiff’s allegations in the Complaint. The court, citing Gray v. Beverly Enterprises-Mississippi, Inc,. 390 F.3d 400 (5th Cir. 2004), found that Plaintiff need only demonstrate a reasonable possibility of recovery and that there were no circumstances which would dictate dismissal with prejudice of Plaintiff’s claims against the Mississippi defendant. Thus, Defendant filed to meet its burden.

Adams v. Pathfinder Healthcare, 2006 U.S. Dist. LEXIS 27774 (D. Ark. 2006). 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 demand was granted.

Estate of Lee v. Ctr. Pointe HRC, LLC, 2006 U.S. Dist. LEXIS 12344 (D. Fla. 2006). 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, claiming removal was improper. The court found that the case presented a close question as to whether removal was improper. It then denied the motion for attorney’s fees after examining a letter from Plaintiff suggesting defendants should consent to remand, which they did. The court found that it was disingenuous for Plaintiffs to urge defendants to simply consent to remand and then file a motion for fees.

Beverly Enters.-Ark., Inc. v. Circuit Court, 2006 Ark. LEXIS 426 (Ark. 2006). 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 improper prior to entry of judgment for damages that might never be obtained. The writ for certiorari was granted and the trial court was reversed.

Health Care & Ret. Corp. of Am., Inc. v. Bradley, 944 So. 2d 508 (Fla. 4th DCA 2006). After Plaintiff sued for negligence, Manor Care moved to disqualify Plaintiff’s counsel. The trial court denied the motion. An application for certiorari was filed and granted. From February 2001 through December 2004, Scott Fischer represented Manor Care defending nursing home cases. At the end of December 2004, Fischer left his prior firm and joined Gordon & Doner. Defendants’ motion was to disqualify Fischer’s new firm. Gordon & Doner opposed the motion, arguing that Fischer did not receive any confidential information while representing Manor Care. Apparently, the trial court denied the motion, finding that Manor Care failed to prove that confidential information was share. On appeal, the court noted initially that motions to disqualify counsel are treated with skepticism because they impinge on a party’s right to employ a lawyer of choice. However, the possibility that one party could gain an unfair advantage over the other requires that the court determine whether confidences bearing on the case at bar were shared. The Court found, initially, that there is irrefutable presumption that confidences were disclosed to client and the attorney; because the trial court erred in failing to apply this presumption, the case was reversed. The only remaining issue is whether the confidences involved are substantially related to the matters in which prior counsel represented the former client. If so, then counsel and his new firm must be disqualified. The nursing home had not shown that the matters were substantially related; the case was remanded for additional hearings as the trial court deemed necessary to decide the motion to disqualify. Prior decision withdrawn: Health Care & Ret. Corp. of Am., Inc. v. Bradley, 2006 Fla. App. LEXIS 18321 (Fla. 4th DCA 2006).

Stevens v. Americana Healthcare Corp., 919 So. 2d 713 (Fla. 2nd DCA 2006). After Plaintiff brought suit against a nursing home, the trial judge indicated that he was personally acquainted with three of the witnesses expected to testify at trial. One was a nursing home administrator; the other two were physicians. The trial judge described himself as being “very good friends” with one of the doctors. The judge knew the administrator from serving together on the local school board. The trial judge said most judges in the area knew one of the physicians so a motion for disqualification would prompt him to request that the Chief Judge appoint a Senior Judge from another area. The trial judge made these disclosures during a hearing. Plaintiff’s counsel was unable to contact his client to discuss the matter. In the interim, the trial judge indicated that he would write an Order of Recusal and indicate to the administrative judge that if he appoints another judge, he might want to think about one from out of town. Approximately two weeks later Plaintiff filed a motion to disqualify the judge based on his disclosures. The judge denied the motion, finding that his acquaintance with some of the witnesses was not a sufficient basis for disqualification. On appeal, the court held that disclosure of the acquaintance was proper and that, by itself, knowing several witnesses would not trigger disqualification. However, the judge’s remarks in inviting a motion for disqualification and in offering to write an order of recusal would have caused a reasonable person to conclude that the judge intended to grant a timely motion for disqualification. Under these circumstances, the judge could not reverse course and deny the motion he had invited and offered to grant.

Eldridge v. Heritage Manor, L.L.C., 942 So. 2d 743 (La. Ct. App. 2006). Plaintiff brought suit and nursing home filed exception based on immaturity of the claim as it had not been reviewed by the medical review panel. The trial court agreed, sustained the exception and it was affirmed on appeal. The court found six factors making the action subject to the medical malpractice statute: (1) Plaintiff’s allegations include dereliction in professional skill; (2) expert medical testimony would be required to determine whether the standard of care was breached; (3) all allegations involved assessment or lack of assessment of the resident’s condition; (4) the allegations concerned actions or inactions which the defendant was licensed to perform; (5) common sense dictates that failure to provide enough treatment is linked to treatment; and (6) there is no allegation that the tortuous conduct was intentional.

Gauthier v. Carencro Nursing Home, Inc., 938 So. 2d 235 (La. Ct. App. 2006). Nursing home appealed decision denying its exception of prematurity and exception of no cause of action and non-joinder of a party. Defendants appeal was dismissed on procedural grounds, but it was given time to perfect its appeal with the proper application.

Cooley v. Gamble Guest Care Corp., 930 So. 2d 1164 (La. Ct. App. 2006). The trial court sustained defendants’ exception of prematurity. The medical review panels’ term was about to expire without having reached a decision so an agreed motion was entered extending the panel. The order was, apparently, not signed until after the panel term expired. Plaintiffs filed suit and Defendants filed their exception. The trial court sustained the exception, finding that the panel was continued. The decision was affirmed.

Davis v. St. Francisville Country Manor, LLC, 928 So. 2d 549 (La. Ct. App. 2006). Trial court sustained defendants’ exception of prematurity. The trial court was reversed in part because violations of the nursing home resident rights bill prior to August 15, 2003 were not subject to the medical review panel process. Further, claims that the resident was not cleaned and was left in her own feces were not subject to that process.

Harmon v. St. Augustine Manor, 2007 U.S. Dist. LEXIS 25504 (N.D. Ohio 2007). 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 for remand. Finding that there is no private right of action created or implied in the Medicaid Act or its regulations, no federal question was brought and remand was mandated. Decided April 5, 2007.

Estate of Moore v. Nat’l Health Realty, Inc., 2006 Tenn. App. LEXIS 166 (Tenn. Ct. App. 2006). 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 filed an amended complaint naming only NHC. Defendant answered in the name of the facility, which was NHC Healthcare/Smithville. Eight months later, counsel requested leave to amend the complaint and add seven additional companies affiliated with NHC. The trial court granted the motion and Defendants, after their objection was overruled, appealed. On appeal, the opinion indicates there was no dispute that the amended complaint naming additional defendants was beyond the limitations period. Plaintiffs argued the claims related back pursuant to Tenn. R. Civ. P. 15.03. In analyzing the rule, the court found that claims relate back when (1) the defendant knew or should have known that but for a mistake they would have been a party, and (2) the plaintiff shows the failure to name the defendant to be added resulted from a mistake concerning the identity of the proper party. The court found that the only mistake in this case was that the additional defendants were omitted from the original complaint. The trial court erred by granting the motion to amend and its order was vacated. Decided: March 8, 2006.

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