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Nursing Home Cases: Motions to Dismiss

Russell v. Nat’l Heritage Realty, Inc., 2007 U.S. Dist. LEXIS 640 (D. Miss. 2007). Plaintiff filed suit against Indianola Health & Rehabilitation Center. The Defendant is a mere trade name and the nursing home was operated by National Heritage Realty, Inc. Defendant moved to dismiss the claim, and plaintiff failed to file a response. The claims were dismissed.

Brown v. Sun Healthcare Group, Inc., 2007 U.S. Dist. LEXIS 12915 (E.D. Tenn. 2007). Plaintiff’s decedent was a nursing home resident who developed severe decubitus ulcers and suffered from dehydration and malnutrition. Plaintiff alleged medical malpractice, negligence per se and third party beneficiary breach of contract. Defendants moved to dismiss and for judgment on the pleadings. Citing Brogdon v. National Healthcare Corp., 103 F.Supp. 2d 1322 (N.D. Ga. 2000), and Conley v. Life Care Ctrs. of Am., Inc., 2007 Tenn. App. LEXIS 13 (Tenn. Ct. App. 2007) found that there is no private cause of action under the nursing home regulations and dismissed the negligence per se claim. The Court found that a third party breach of contract claim, to wit: that Plaintiff was a beneficiary of the nursing home’s contract with Medicaid, is governed by State law. The Court denied Defendant’s motion to dismiss that claim, but cited Conley for the proposition that Plaintiff must satisfy all elements of the Tennessee Medical Malpractice Act to prevail on that claim. The motion for judgment on the pleadings was based on Plaintiff’s delay in responding to the motion to dismiss, which was excused due to difficulties with the court’s electronic filing system.

Ray v. Heritage Care, Inc., 2006 U.S. Dist. LEXIS 50305 (D.D.C. 2006). 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 complained of were in Maryland and that Plaintiff could have filed the action there. The court rejected Plaintiff’s argument that DC was an appropriate venue because the nursing home is within one mile of the DC border and many of the nursing home residents are DC residents.

Perry v. Manor Care, Inc., 2006 U.S. Dist. LEXIS 47861 (D. Pa. 2006). 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 and dismiss the federal case or in the alternative to stay the case pending outcome of the State case. The motion was denied. Although the parties were sufficiently parallel for abstention purposes, the claims were not. “In the state case, Plaintiff would not be able to recover from Defendant in the state action unless the individual defendants are found to have been responsible for Plaintiff’s injuries. Similarly, in the federal case, if Defendant is found to have been responsible for Plaintiff’s injuries under the corporate negligence doctrine, the defendants in the state case would not necessarily be held responsible for Plaintiff’s injuries.”

Hall v. Trisun, 2006 U.S. Dist. LEXIS 45676 (D. Tex. 2006). 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.

Deaver v. Faucon Props., 2006 Ark. LEXIS 442 (Ark. 2006). 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 “order of revival.” The court held that an order substituting parties pursuant to Ark.R.Civ.P. 25 properly revived the action and, therefore the court erred in granting defendant’s motion to dismiss. Court of Appeals decision at Deaver v. Faucon Props., 2006 Ark. App. LEXIS 402 (Ark. Ct. App. 2006).

GIBSON v. SUPERIOR COURT OF CALIFORNIA FOR LOS ANGELES, 2006 Cal. App. Unpub. LEXIS 8922 (California Unpublished Opinions 2006). 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 needed ‘Full Assist[ance] . . . for eating, transferring, and ambulating’; (2) Gibson was unsupervised by any nurse at the time of the fall that is the subject of the elder abuse claim; (3) the nursing facility consciously failed to provide a Geri-chair with a tray to restrain Gibson from getting up unassisted; (4) the nursing facility consciously failed to provide sufficient budget and staffing to meet patient needs; and (5) the facility had received several deficiency notices relating to the risks of patients falling. Together, these facts were sufficient to withstand a demurrer to the elder abuse claim.” The trial court was directed to vacate its prior order and enter an order overruling the demur.

MARCHESANO v. DEKKERS, 2006 Cal. App. Unpub. LEXIS 4356 (California Unpublished Opinions 2006). 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 damages pursuant to Calf. Code of Civil Procedure § 425.13.” Plaintiff filed a third amended complaint for negligence and wrongful death and renewed their motion to add punitive damages. After it was denied, Plaintiffs sought an interlocutory appeal, which as denied. Plaintiff’s then dismissed the action for wrongful death and the sole remaining claim was the survivor’s claim for negligence. The trial court granted Defendant’s motion for judgment on the pleadings after finding there were no economic damages and, therefore, no cause of action for negligence. Plaintiff then appealed, arguing that the trial court erred in sustaining the demur on willful misconduct. The court found that, arguendo, if a tort for willful misconduct is still viable, that sufficient facts were not alleged to state a cause of action; willful misconduct requires some intentional act embodying a degree of malice. The court rejected Plaintiff’s argument that Defendant’s failure to observe federal and state nursing home regulations was tantamount to willful misconduct. Plaintiffs also appealed the demur relating to elder abuse. The court found that a medical malpractice action could not be recast as an elder abuse case; the elder abuse cause of action and the medical malpractice cause of action are like a “toggle switch:” it is either one or the other. The court similarly held that Plaintiffs had not alleged facts sufficient to state a cause of action for intentional infliction of emotional distress or for punitive damages. Judgment on the pleadings was properly granted.

Amaro v. Northbridge Health Care Ctr., Inc., 2007 Conn. Super. LEXIS 454 (Conn. Super. Ct. 2007). Defendants filed motions to strike two counts in Plaintiff’s complaint, alleging recklessness in the care and treatment of the decedent, as well as, a violation of Conn. General Statutes § 19a-550(b)(10). The motions were denied. As part of Plaintiff’s negligence claim, Plaintiff alleged that “defendants failed to properly care for, assess and/or treat the decedent’s bilateral heel ulcers, coccyx pressure sore, skin tears and the surgical incision to the decedent’s left hip; failed to ensure that the decedent was free from unnecessary drugs; failed to take reasonable care in determining the cause of the decedent’s elevated blood glucose levels; failed to properly recognize the signs and symptoms of an infectious process; failed to provide a proper work-up in light of the decedent’s complaints; failed to timely order blood cultures; and failed to timely refer the decedent to a hospital emergency room or other competent medical provider.” No additional facts were pled regarding the additional counts and Defendants contended the allegations were, at best, sufficient to support a negligence claim and should be stricken. Plaintiff responded that Defendants had knowledge of the resident’s condition and that their knowledge and disregard of her condition supported the action for recklessness. In light of the allegation of knowledge and disregard, the Court found the allegations sufficient to support the cause of action and denied Defendant’s motion to strike.

Rivera v. Simonetti, 2006 Conn. Super. LEXIS 2732 (Conn. Super. Ct. 2006). 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 granted.

Diaz v. PARCC Health Care, 2006 Conn. Super. LEXIS 286 (Conn. Super. Ct. 2006). 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 to the motion and to appoint an executrix so that a motion to substitute the executor as a party could be filed. Defendant objected, claiming the plaintiff was deceased, could not properly bring a lawsuit and therefore, could not amend the complaint. “It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue.” (Internal quotation marks omitted.)… [A] dead person is a nonexistent entity and cannot be a party to a suit.” Plaintiff’s counsel contended he was unaware that the Plaintiff was dead and that naming the deceased as a Plaintiff was a mistake. “The court is not satisfied that the present action was commenced “through mistake,” and that the plaintiff’s attorney named the wrong plaintiff. Although the plaintiff’s attorney claims that he was unaware of the plaintiff’s death at the time the present action was commenced, he was charged with the responsibility to keep his client reasonably informed about the status of this matter.” The court indicated that after an executor is appointed, the executor could bring a new action not later than February 10, 2006 (this decision being dated January 30, 2006); however, the current action is not valid. The motion to dismiss was granted.

Note: The moral of this story seems to be, make sure your client is alive before you name him or her as a Plaintiff. It is unknown whether Plaintiff succeeded in getting an executor appointed in time to refile the action.

Arch Plaza, Inc. v. Perpall, 2006 Fla. App. LEXIS 18693 (Fla. 3rd DCA 2006). 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 must be served with pre-suit notice. Plaintiff responded arguing “that by sending the pre-suit notice to Arch Creek Nursing Home, he had complied with the pre-suit notice requirements as to all five-named defendants since (1) Arch Creek Nursing Home was sold to Arch Plaza, Inc. prior to Mrs. Perpall’s admission to the nursing home and are thus, the same entity; and (2) Arch Creek Nursing Home, Arch Plaza, Inc., and the other three-named defendants are all owned by the same person, Russell Galbut, have the same registered agent, and have the same registered principal place of business.” The purpose of the pre-suit notice statute is to encourage pre-suit investigation, discussions, settlement and screening to avoid frivolous lawsuits. So long as these functions are served, it should be construed in a manner that does not unduly restrict a citizen’s access to court. The Court denied the petition finding that pre-suit notice to any prospective defendant operates as notice to any other prospective defendant who bears a legal relationship to the prospective defendant receiving notice.

Res. Healthcare of Am., Inc. v. McKinney, 940 So. 2d 1139 (Fla. 2nd DCA 2006). Personal representative of resident’s estate sued multiple corporations for nursing home negligence including Residence Healthcare, a foreign corporation. Residence Healthcare moved to dismiss for lack of personal jurisdiction. Plaintiff is first required to demonstrate that the long-arm statute reaches the defendant; if so, then the court determines whether minimum contacts exist. In this case, the issue of minimum contacts was not reached because Plaintiff did not establish that the long-arm statute provided a basis for jurisdiction. Although Plaintiff alleged that Residence Healthcare established, conducted, managed, operated or maintained the nursing home, and therefore had a duty to the resident that was breached, the court found that deposition testimony showed otherwise. The depositions also failed to show, other than ownership of a subsidiary, that Residence Healthcare conducted business in Florida or had any substantial activity in Florida. Ownership of a subsidiary, without more, is insufficient to confer jurisdiction and reversed. The court, however, note that if a parent corporation was shown to exercise sufficient control over a subsidiary, that control would establish agency and support jurisdiction. Here, the trial court was directed to grant the motion to dismiss.

Carter v. Estate of Rambo, 925 So. 2d 353 (Fla. 5th DCA 2006). Plaintiff sued the nursing home, its owner (an LLC) and the individual manger of the LLC. The manager was not a Florida resident and moved to dismiss the complaint on personal jurisdiction grounds. The manager contested each allegation that he was subject to jurisdiction in Florida, shifting the burden back to the Plaintiff. The Plaintiff attempted to meet this burden by showing that the manager had signed uniform business reports on behalf of the company. Applying the corporate shield doctrine, the court held that actions of the manager on behalf of the LLC are exempt when consider whether the manager’s conduct supported long-arm jurisdiction. Plaintiff presented no evidence that the manager personally committed any torts in Florida and the deposition testimony indicated that his only contact with Florida was signing the business reports as managing member of the LLC. The court erred by denying his motion to dismiss.

Hilltopper Holding Corp. v. Estate of Cutchin, 2007 Fla. App. LEXIS 3440 (Fla. 2nd DCA 2007). Two Defendants appealed from the trial court’s denial of a motion to dismiss for lack of personal jurisdiction. The appealing Defendants had filed affidavits alleging that they did not conduct business in Florida, were not licensed to do business there and did not maintain offices there. They alleged they did not manage or operate the nursing home and did not have responsibility for management or over the employees providing care. Plaintiff did not file any countervailing affidavits, simply arguing that Defendants’ affidavits were insufficient to refute jurisdiction. The court found that Defendants affidavits were sufficient to shift the burden of showing jurisdiction back to Plaintiffs and that Plaintiffs failed to come forward with sworn proof. Because Plaintiffs failed to do so, it was error to deny the motion to dismiss. Decided March 9, 2007.

Williams v. Alvista Healthcare Ctr., Inc., 2007 Ga. App. LEXIS 137 (Ga. Ct. App. 2007). Plaintiff appealed dismissal of their claims against a nursing home and four employees based on failure to comply with O.C.G.A. § 9-11-9.1, which requires the filing of an expert’s affidavit with complaints alleging malpractice. Defendant’s motion was not ruled on immediately and limited discovery was conducted. Seven months later, the motion was renewed. Two of the individual defendants remained unserved and the court dismissed them asserting laches. On appeal, Plaintiffs contended that O.C.G.A. § 9-11-9.1 did not apply because they asserted a claim for ordinary negligence, not professional negligence. The court agreed in part. An expert affidavit is required when the negligence complained of requires professional judgment. The complaint alleged a failure to properly administer medication and a Violation of the Bill of Rights for Residents of Long-Term Care Facilities, O.C.G.A. § 31-8-100 et seq., by failing to properly document complaints of chest pain. The court held that a failure to properly administer medication requires professional judgment and, thus should have been dismissed. However the trial court erred by dismissing claims based on nonprofessional, administrative aspects of documenting care. The court found no error in dismissing two unserved defendants where they remained unserved on March 24, 2005, more than 17 months after the statute of limitations expired.

Gaddis v. Chatsworth Health Care Ctr., Inc., 282 Ga. App. 615 (Ga. Ct. App. 2006). 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 pleadings and the evidence submitted, the trial court granted Defendants’ motion. Initially the court noted that because the trial court considered matters outside the pleadings, the motion to dismiss was converted to a motion for summary judgment. In reviewing the evidence, the court found that the resident was admitted from the hospital with a general instruction to take fall precautions, but no specific instructions. The decision concerning what precautions to take was left to the nursing home staff’s medical judgment and, thus, the claim could not be one for ordinary negligence. The court distinguished Brown v. Tift County Hosp. Auth., 280 Ga. App. 847 (Ga. Ct. App. 2006), where a claim for ordinary negligence was allowed. Failure to include the required affidavit was fatal to the claim.

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.

Wilton v. Illini Manors, Inc. 364 Ill. App. 3d 704 (Ill. App. Ct. 2006). 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 that Plaintiff was in Jersey County. The court affirmed the trial court’s denial of the motion because Defendant could not show “no connection” to Madison County, some witnesses were there and others were disbursed throughout the State. Absent a strong showing of actual inconvenience, the trial court’s decision to deny a motion to transfer for forum non conveniens should not be disturbed.

Mitchell v. Rehab. Inst. of New Orleans, Inc., 2007 La. App. LEXIS 473 (La. Ct. App. 2007). The court affirmed dismissal due to prescription. Resident went from hospital to nursing home where she treated for decubitus ulcers developed at the hospital. After admission to the nursing home, she developed additional decubitus ulcers, gastrointestinal bleeding, pneumonia and infection in her right foot. She died on October 1, 2003. After initially proceeding against other defendants, on November 21, 2005, Plaintiffs filed a second amended petition naming the State of Louisiana and other defendants. The State and a physician filed an exception for prescription arguing that the original suit was premature and did not interrupt prescription because it was filed before Plaintiffs filed their required request for a review by a state medical review board. The trial court sustained the exception. Applying LeBreton v. Rabito, 714 So. 2d 1226 (La. 1998), the court found that “the specific statutory provision providing for the suspension of prescription found in the medical malpractice act is to be applied alone and not with the more general Civil Code article which addresses the interruption of prescription.” Decided: February 14, 2007.

Guillot v. Lecc-Baton Rouge, Inc., 2006 La. App. LEXIS 2923 (La. Ct. App. 2006). 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 clock begins again once a decision is delivered. Suit was brought after the notice was received by the Louisiana attorney. The nursing home moved to dismiss, arguing that the claim was barred. The trial court granted the motion. The court of appeals reversed, finding that an individual not employed in the attorney’s office who is not authorized to receive the attorney’s certified mail cannot, by signing, cause the clock to resume.

Alexander v. Amelia Manor Nursing Home, Inc., 924 So. 2d 409 (La. Ct. App. 2006). Resident was in two different nursing homes and after her death, Plaintiff sued both of them. Each was dismissed and Plaintiff appealed. The action against the first nursing home was beyond the limitations period. Plaintiff’s discovery argument was rejected. The trial court’s dismissal of the second nursing home was also sustained since the only evidence Plaintiff offered of inadequate care was that the resident was gasping for breath when the plaintiff visited her. That was insufficient.

Howard v. Estate of Harper, 947 So. 2d 854 (Miss. 2006). 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 for acts or omissions regarding care of its residents, the Mississippi Supreme Court declined impose the same common law duty on administrators. The court held that minimum licensing standards for administrators do not form a statutory basis for an action against an administrator. The court found that a medical malpractice action could not be sustained against the administrator because the administrator is not a medical provider. The fraud claim was not pled with sufficient particularity to be sustained. Finally, the court found “as a matter of law that a fiduciary duty cannot exist simply because of the Howards’ roles as licensee and administrator.” The case was reversed with direction to dismiss the administrator and to conduct further proceedings against the remaining defendants consistent with the opinion.

Note: This case was followed in Brawhaw v. Mariner Health Care, Inc., 2007 U.S. Dist. LEXIS 26593 (N.D. Miss. 2007), decided April 9, where claims against an administrator were dismissed with prejudice. In Brandon v. Beverly Enterprises, 2007 U.S. Dist. LEXIS 26627 (N.D. Miss. 2007), decided April 6, 2007, the court granted summary judgment on Plaintiff’s fraud claims, finding that Howard requires more than misrepresentations concerning the quality of care. However, the court distinguished Howard and Defendants’ motion for summary judgment was denied on the breach of fiduciary duty count. In Howard, the Defendant was an administrator, while in Brandon it was the nursing home. The Court found that “the very nature of a nursing home patient is akin to a ward under the dominion and control of a fiduciary.”

Howard v. Kindred Nursing Ctrs. Ltd. P’ship, 2006 Tenn. App. LEXIS 521 (Tenn. Ct. App. 2006). Resident died in April 2000. Suit was filed in February 2002. The action was removed to federal court but was later remanded. Kindred and a hospital defendant argued that the one-year statute of limitations had expired; Plaintiff countered that they were prevented from filing an action within one year because Kindred was in bankruptcy and actions against it were stayed. The trial court dismissed the action on Defendants’ motion. The record showed that the bankruptcy court order deemed actions to be timely filed if commenced within 30 days after there was no bankruptcy prohibition for doing so and the stay was lifted on July 16, 2001; suit was not filed until February 25, 2002. Tennessee’s Medical Malpractice Act includes a one-year statute of limitations, T.C.A. § 28-3-104, which is measured from the date the cause of action accrues. The action was untimely and was properly dismissed. Decided: August 2, 2006.

Walter M. Clark v. Tirr Rehab. Ctr., 2007 Tex. App. LEXIS 2024 (Tex. App. 2007). Plaintiffs sued alleging that resident, who had osteoporosis, was negligently dropped by a physical therapist. The trial court dismissed the suit for failure to file an expert witness report. Plaintiffs argued an expert report was not necessary because the claim was for ordinary negligence. Although the injury occurred at the rehabilitation center by its licensed physical therapist, Plaintiffs argued that it was not health care negligence because the injury could have happened anywhere and a lay person could have caused the injury. The court disagreed, distinguishing a case where lack of supervision was not professional malpractice, because the proper method for supervising physical therapy for a frail, elderly woman is not within the common knowledge of the general public. Also, Plaintiff was seeking damages against the rehabilitation center relating to the resident’s death, which required a medical expert. The trial court’s decision to dismiss the case was sustained. Decided: March 15, 2007

Pisasale v. Ensign Group, Inc., 2006 Tex. App. LEXIS 7983 (Tex. App. 2006). Plaintiffs sued nursing home and case was dismissed because their expert reports failed to comply with Tex. Rev. Civ. Stat. Art. 4590i, § 13.01. Defendants argued that one expert was not qualified and argued that the other was conclusory and did not sufficiently describe a causal link between the negligence and the injury. Plaintiffs argued that their affidavits were sufficient but, in the alternative, requested a 30 day extension to update the reports. The court denied the request for an extension and dismissed the case. Plaintiffs appealed. The court of appeals found that McMinn was not qualified to render an opinion as to causation. The second report concluded with a heading entitled: the causal relationship between the failure of Northern Oaks Nursing Center to meet the standard of care and the injuries suffered by Mr. Pisasale. The only statement under that heading was the following: “As a result of the failure to meet the standard of care by the nursing staff at Northern Oaks Mr. Pisasale suffered pain and required hospitalization. I think their negligence was a proximate cause of the deterioration and suffering sustained by Mr. Pisasale.” Beyond the absence of facts which rendered it conclusory, the court found that the phrase “I think” made it speculative. The trial court did not err by denying the motion for additional time since omitting a required element from the expert report is not a mistake of law. The judgment below was affirmed.

Emeritus Corp. v. Highsmith, 211 S.W.3d 321 (Tex. App. 2006). Plaintiffs filed their expert report on August 29, 2005. The 120th day after filing the complaint was July 4th. Defendant assisted living facility moved to dismiss the complaint and the trial court denied the motion. On appeal, Plaintiffs argued that an abatement order extended the time for filing the report. The court held that the abatement order was not the kind of bilateral agreement required under the statute to extend the period of time for filing the expert report and therefore it did not extend the 120-day statutory deadline. The trial court erred in denying the motion to dismiss.

Davis v. Mound View Health Care, Inc., 640 S.E.2d 91 (W. Va. 2006). 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 to refile after compliance with the statute.

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