Another Court Rules that NHRA is a toothless tiger (E.D. Mo.)
Elgin James filed suit alleging that he developed bedsores due to nursing home negligence. Specifically, he alleged that the nursing home violated 42 C.F.R. § 483.25 which provides that a nursing home must prevent bedsores unless they are unavoidable. Following a line of cases stretching back to Brogdon v. NHC, 103 F.Supp2d 1322 (N.D. Ga. 2000), the Court found that the nursing home reform act does not confer a private right of action. Unlike Brogdon, the Court did not discuss whether the NHRA might serve as the standard of care in evaluating a malpractice claim.
James v. Board of Curators of the University of Missouri, 2011 U.S. Dist. LEXIS 4274 (1/18/2011)

Dismissal of nursing home management company in death case reversed (Pa. Super.)
Richard Scampone, as executor of the estate of Madeline Scampone, sued the nursing home where Madeline was a resident. The nursing home’s management company was also named as a defendant under a theory of understaffing due to corporate neglect. The estate alleged the negligence, including dehydration and malnutrition, caused a heart attack leading to Madeline’s death. Prior to submitting the case to the jury, the trial court non-suited the claim against the management company. The trial court also refused to submit the issue of punitive damages to the jury. The jury nonetheless found for the plaintiff, awarding $193,500. Following entry of the verdict and judgment, the plaintiff appealed. On appeal, the Court reversed, holding that Planitiff presented evidence of corporate neglect because the management company controlled the health care for the residents. Accordingly, the non-suit was improperly granted. Further, because there was evidence of reckless disregard for the rights of others, the issue of punitive damages should have been presented to the jury.
Scampone v. Grane Healthcare Company, 2010 Pa Super 124 (7/15/2010)

Nursing Home negligence verdict affirmed (Ga. App.)
Tucker Nursing Center appealed a $1.25 million verdict relating to its negligence in caring for a resident who was at risk of developing pressure ulcers. In addition to other matters, the nursing home appealed the trial court’s ruling that former employees could testify regarding inadequate staffing, lack of supplies and complaints regarding care. The trial court allowed testimony from former employees concerning what they experienced and observed while the resident was at the nursing home, reserving ruling concerning other time periods. In affirming the verdict, the Court found that the testimony objected to: “pertained to the conditions at Tucker Nursing while Mr. Raybon was a patient there, and that the testimony specifically related to the care he and other patients received, including the fact they observed Mr. Raybon or other residents soiled with urine and waste, that they lacked the supplies necessary to do their jobs, which including bathing and cleaning the patients, and that the facility lacked enough staff to turn or reposition Mr. Raybon every two hours as his condition required.” The trial court’s rulings on other evidentiary objections were similarly affirmed. The judgment was affirmed.
Tucker Nursing Center , Inc. v. Mosby, 2010 Ga. App. LEXIS 277 (3/24/2010)

Nursing home seeks arbitration after plaintiff files counterclaim (Md. App)
Lochearn Nursing Home, LLC, d/b/a FutureCare Lochearn, Inc. sued Addison in the Circuit Court for Baltimore City alleging breach of contract for delinquent nursing home payments. After Ms. Addison filed counterclaims, FutureCare filed a motion to compel arbitration; that motion was denied. FutureCare then moved to have the order denying arbitration certified as a final order, which was also denied. FutureCare appealed. On appeal, the Court of Special Appeals reversed; it found that Maryland law permits an interlocutory appeal of an order, “granting a petition to stay arbitration;” accordingly, FutureCare’s appeal was not premature. The Court of Appeals held otherwise; it vacated the judgment of the Court of Special Appeals and directed that FutureCare’s appeal be dismissed; an appellate court may not direct entry of final judgment when the trial court denied the motion to certify an order as a final judgment. The Court further held that the denial of the motion to compel arbitration did not constitute either an appealable interlocutory order or collateral order from which FutureCare could appeal. Although the issue of waiver is not discussed, the Court of Appeals found it disingenuous for FutureCare to argue that denial of its motion to compel arbitration somehow increases its litigation expense when it initiated the litigation and bifurcation of the claims would force split the litigation between two forums.
Addison v. Lochearn Nursing Home, No. 134, September Term 2008

Florida continues to enforce arbitration agreements (Fla. App. 2nd)
In two cases, the Florida Second District Court of Appeals reversed orders denying the nursing home’s motion to compel arbitration. In each case, the nursing home resident had executed a power of attorney and the agent signed the admission agreement. There was no indication that either power of attorney expressly limited the agent’s power to enter into an arbitration agreement. In Candansk, the power of attorney followed the model in the Uniform Power of Attorney Act, listing powers bestowed on the agent; the power to agree to arbitration was not among the listed powers. The document gave the agent power to act in any way with respect to litigation which “includes the power to agree to submit to arbitration.” Thus, the agent was authorized to sign the agreement. In Jaylene, the court summarily reversed the trial court’s decision that the agent had no authority to execute the arbitration agreement. The trial court, however, had also found that the arbitration agreement violated public policy; it referred the case to arbitration administered by the National Health Lawyer’s Association. The NHLA rules prohibit certain remedies otherwise available to nursing home residents under the Florida Resident Rights Act. The trial court held this limitation violates public policy; in reversing, the court of appeals held that the arbitrator should initially decide the public policy issue. The court noted that its decision is in conflict with decisions from Florida’s First, Fourth and Fifth Districts.
Candansk, LLC v. Estate of Hicks, 2009 Fla. App. LEXIS 16861, Appeal No. 2D08-5230 (11/13/2009)

Carlson v. Extendicare Health Servs., 2006 U.S. Dist. LEXIS 51351 (D. Minn. 2006). 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 send” policy relating to hospital admissions.

United States v. 524 Cheek Rd., 425 F. Supp. 2d 704 (D.N.C. 2006). Forfeiture action by the government where it was alleged that cocaine was sold at a nursing home. One witness “observed the Isleys supply people living in the home with cocaine and alcohol in exchange for the endorsement of their monthly government check to the Isleys.” The government filed a motion for summary judgment under the Civil Asset Forfeiture Reform Act of 2000. The motion was granted.

Aguayo ex rel. NLRB v. S&F Mkt. St. Healthcare LLC, 2006 U.S. Dist. LEXIS 36470 (D. Cal. 2006). 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. Respondent refused to recognize the collective bargaining representative. The union then filed a complaint with the National Labor Relations Board. After a hearing, the regional director of the NLRB filed for a temporary injunction against alleged unfair labor practices pending NLRB’s final decision. NLRB showed that the successor corporation hired a substantial complement of employees from its predecessor and that there was a continuity of operations. The union represented a majority of the employees and therefore had a right to engage in collective bargaining. The court ordered the successor to engage in bargaining in good faith. The court denied NLRB’s motion to order a fired union steward reinstated due to the passage of time (twenty months) since the firing.

Thornburg v. El Centro Regional Medical Center, 143 Cal. App. 4th 198 (Cal. Ct. App. 2006). Plaintiff requested medical records and the hospital charged $2 per page. Plaintiff objected, citing California Evidence Code § 1158 which provides that a medical provider can charge no more than ten cents per page. Plaintiff then filed a class action alleging that the hospital systematically violated the limitation of charges. The hospital argued that section 1158 could not be enforced in a private civil action. The trial court granted Defendant’s motion for judgment on the pleadings. On appeal, the court found that the limitation on charges could be enforced directly by patients and reversed the trial court.

Albukerk v. Horwitz (In re Estate of Horwitz), 2007 Ill. App. LEXIS 143 (Ill. App. Ct. 2007). Attorney sued for legal fees and expenses associated with a nursing home case based on quantum meruit. The claim accrues immediately after the attorney is discharged.

Sharp v. Belle Maison Nursing Home, Inc., 2007 La. App. LEXIS 541 (La. Ct. App. 2007). Plaintiffs filed suit against physicians, nursing home and parish coroner. The coroner filed a peremptory exception contending there was no cause of action, contending he had no duty to assist the family in preserving evidence of alleged negligence. Plaintiffs insist that the coroner was legally obligated to perform an autopsy under La. R.S. § 33:1563(B)(1) because there was a reasonable probability that the violation of a criminal statute by the nursing home staff contributed to Mrs. Sharp’s death. Plaintiffs cited no authority for their claim. The court agreed with the coroner that the law does not impose a duty on the coroner to conduct an autopsy for the benefit of private individuals. Decided: March 23, 2007.

Terry v. Red River Ctr. Corp., 942 So. 2d 1238 (La. Ct. App. 2006). Plaintiff daughter sued nursing home after it asked EMTs to revive Doris Lee; Ms. Lee had a DNR. There were legal deformities and contradictions in three separate DNRs executed between 1996 and 2002. “The record was clear that Mrs. Lee had been under the care of several physicians and had several close calls with death, but had continued to survive. Calling 911 was not a violation of the DNR by Riverview as such a call would not amount to heroic measures in the purview of a nursing home facility’s duty of care to its patients. Therefore, we find no error in the trial court’s conclusion that Riverview complied with her wishes and did not violate the DNR.”

In re Conservatorship of Burnette, 2006 Tenn. App. LEXIS 756 (Tenn. Ct. App. 2006). The trial court’s order replacing a health care agent was affirmed. Resident, an 88 year old Alzheimer’s patient, was unmarried and had no children. He had named his neighbor as his health care agent. There was evidence that the agent had used a power of attorney to make substantial gifts to himself. Following admission to a nursing home, resident’s sister and a niece filed a petition for conservatorship and sought to remove the agent as health care decision-maker. In addition to evidence of the gifts, “[s]everal Manorhouse employees [noticed] physical and hygiene problems with Mr. Burnette when he returned to the facility following time spent with Mr. Jenkins. On at least one occasion in December, 2004, Mr. Burnette returned with several scratches on his hands and knees. He also returned with dried feces in his underwear on this date. On January 6, 2005, Mr. Burnette returned with wounds on his chin and elbow. On this same date, Mr. Burnette returned with dried blood on his shirt and what appeared to be a blood stain on the front of his underwear.” The guardian ad litem inspected the place where home visits occurred and reported it to be run-down and unsafe. The trial court entered an order restraining Jenkins from visiting or being in the vicinity of the resident, revoking his power of attorney and ordering a return of the gifts the agent made to himself. The agent argued on appeal that the trial court committed error by retroactively applying T.C.A. § 34-6-204, a code section that authorizes revocation of a health care power of attorney for cause shown. The court of appeals found that the code section was procedural and that it could be applied retroactively. Further, the agent had no vested rights in the relationship. The power of attorney “did not convey a right or contractual commitment that Mr. Jenkins would continue as health care attorney in fact for Mr. Burnette when “good cause” exists for his removal.” The court held that the trial court’s findings demonstrated good caused for removing the agent. Decided: November 29, 2006.

Donohoe v. State, 135 Wn. App. 824 (Wash. Ct. App. 2006). Court of appeals affirmed dismissal of claim against the State for failing to assure compliance with the State nursing home regulations. “Even if the State could be said to have waived sovereign immunity so as to be potentially susceptible to the Estate’s lawsuit here, we hold that: (1) chapter 18.51 RCW, the nursing home regulation statute, does not create an actionable duty that DSHS owes to an individual nursing home resident; (2) any duty that chapter 18.51 RCW imposes on DSHS to oversee nursing homes’ regulatory compliance is a duty owed to the public generally, not to individual residents such as Mrs. Donohoe; and (3) any alleged breach of that duty is not actionable by the Estate because Mrs. Donohoe’s relationship with DSHS does not fall within any exception to the public duty doctrine. In short, the Estate has no actionable claim under either the common law or statute.”

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