Mealey's Elder Law : Mealey's : Legal News & Analysis

Mealey's Elder Law

October 05, 2023
Wrongful Death Suit Filed Against Rehab That Employed Nurse Charged With Homicide

PITTSBURGH — The son of a former rehabilitation facility resident filed a wrongful death and negligence suit against the facility after a nurse employed there was charged with criminal homicide related to insulin overdose deaths at a facility where she previously worked, asserting, in part, that the rehab facility’s negligent failure to conduct a background check of the nurse led to the resident’s death.
October 03, 2023
DOJ Argues Segregation Shows Injury In Putative Class Suit Over ADA Violations

BOSTON — In response to Massachusetts state officials’ partial motion to dismiss nursing home residents’ putative class action against them in a Massachusetts federal court alleging that state nursing homes are segregating residents with disabilities in violation of the Americans with Disabilities Act (ADA), the U.S. Department of Justice (DOJ) filed a second statement of interest, asserting that “unnecessary institutionalization is an injury in fact under the ADA.”
October 03, 2023
Judgment Denied In Suit Against Care Home For Failure To Provide Safe Conditions

NEWARK, N.J. — A New Jersey federal judge denied in part an assisted living facility’s motion for summary judgment in a suit alleging that it breached the contract of a former resident, in part, by failing to provide her with safe conditions, for its purported failure to respond to her urgent requests for assistance, finding that the woman’s failure to pay the required fees to the facility pursuant to the contract does not prevent her from recovering from the alleged breaches.
September 29, 2023
Panel Upholds Interdiction But Finds Error In Niece’s Appointment As Curatrix

SHREVEPORT, La. — A Louisiana appellate court affirmed a lower court’s order of full interdiction, determining that an octogenarian is not capable of making decisions about his person and property, but amended the judgment to name the man’s companion as his curator, finding that while the lower court correctly determined that there was “no less restrictive means available other than full interdiction” because there was “no evidence of impropriety” by the companion, it erred in naming the niece as curatrix.
September 29, 2023
Idaho High Court Affirms Ruling Upholding Care Home Citation For COVID Violations

BOISE, Idaho — A unanimous Idaho Supreme Court affirmed a lower court decision denying an assisted living facility’s petition for review of an enforcement action that cited the facility for failure to provide a safe living environment for residents during the COVID-19 pandemic, finding that “substantial evidence” supported a hearing officer’s conclusion that the facility’s “failure to properly implement infectious disease controls created an unsafe living environment.”
September 28, 2023
3rd Circuit Affirms Remand Order In COVID Death Suit Against Decedent’s Employer

PHILADELPHIA — A panel of the Third Circuit U.S. Court of Appeals on Sept. 27 affirmed a lower court’s order granting an estate administrator’s motion to remand to state court a wrongful death and negligence suit filed against a nursing home after the decedent’s death from COVID-19, which she purportedly contracted while employed there, finding in part that remand was correct because the suit does not allege willful misconduct under the Public Readiness and Emergency Preparedness (PREP) Act.
September 26, 2023
Nevada High Court Affirms Denial Of Rehab’s Motion To Compel Heirs To Arbitration

CARSON CITY, Nev. — The Nevada Supreme Court affirmed a lower court’s denial of a rehabilitation facility’s motion to compel heirs to arbitration in a wrongful death suit filed against it by a decedent’s estate and his heirs, finding that though the lower court compelled the estate’s claims to arbitration, the decedent lacked the authority “to bind the heirs to arbitration absent their agreement.”
September 25, 2023
Illinois High Court Affirms Denial Of Care Home’s Motion To Compel Arbitration

CHICAGO — A unanimous Illinois Supreme Court affirmed an appellate court judgment that affirmed denial of a nursing home’s motion to compel arbitration in a negligence and wrongful death suit filed against it by the daughter of a woman who died there, finding that because the contract for facility admission, which included an arbitration provision, terminated upon the resident’s death, the arbitration provision “was no longer an available option.”
September 22, 2023
Split 9th Circuit Affirms Judgment For Insurer In Dispute Over LTC Coverage

SAN FRANCISCO — A split Ninth Circuit U.S. Court of Appeals panel affirmed a district court’s order granting summary judgment to a long-term care (LTC) insurer sued by its insureds over the insurer’s purported failure to cover all the benefits due under the policies, finding that the lower court correctly determined that the LTC “policy and home-care recovery policy do not violate Montana law” and correctly dismissed the remaining claims.
September 22, 2023
DOJ Files Statement Of Interest In Putative Class Suit Alleging ADA Violations

BOSTON — After nursing home residents filed a putative class action against state officials in a Massachusetts federal court alleging that state nursing homes are segregating residents with disabilities in violation of the Americans with Disabilities Act (ADA), the U.S Department of Justice (DOJ) filed a statement of interest, asserting that the state’s argument that class members fail to share the same claims discounts “the longstanding, commonplace, and appropriate certification of classes in similar Olmstead cases.”
September 20, 2023
Health Care Provider Loses Bid To Exclude Causation Expert In Deadly Fall Case

PHOENIX — An Arizona federal judge on Sept. 19 denied a motion for summary judgment after finding that a causation expert retained by the estate of an elderly woman who died after a fall while in the care of an in-home health aide can testify.
September 18, 2023
Government Urges High Court To Uphold ‘Bedrock Principle’ Of Chevron Deference

WASHINGTON, D.C. — The U.S. secretary of Commerce, two National Oceanic and Atmospheric Administration (NOAA) officials and the National Marine Fisheries Service (NMFS) (collectively, the government) urge the U.S. Supreme Court in a Sept. 15 brief to not overrule the doctrine of Chevron deference in a challenge to fishery regulations that were upheld by the District of Columbia Circuit U.S. Court of Appeals, writing that doing so could “cause disruption” to complex federal regulatory schemes.
September 14, 2023
Panel Affirms Order Upholding Trust, Removing Trustee In Undue Influence Case

LITTLE ROCK, Ark. — An Arkansas appellate court on Sept. 13 affirmed an order that removed a trustee but upheld a trust created by a 104-year-old woman two months before she died, finding that the lower court correctly determined that the woman had the capacity to execute the trust and did not err in removing the trustee who breached his fiduciary duties.
September 14, 2023
Panel Affirms Judgment Approving Bid For Nonagenarian Care Home Placement

CHICAGO — An Illinois appellate court affirmed a lower court’s judgment that granted a guardian’s request to place his 90-plus-year-old mother in a residential treatment facility for patients with dementia, finding that the lower court’s judgment was supported by evidence that the mother was not receiving the care in her home that “the guardian believed she deserved” and was “significantly declining as a result.”
September 13, 2023
Grandchildren’s Request For Reconsideration Denied In Row Over Grandfather’s Trust

DAYTON, Ohio — An Ohio federal judge denied a motion by grandchildren for reconsideration or clarification of a district court’s order denying their motion for final judgment for their breach of trust and breach of fiduciary duty claims related to the distribution of their deceased grandfather’s trust, finding that their “arguments are nothing more than a disagreement with Court’s findings” and that clarification with regard to expert testimony should be raised in a motion in limine.
September 13, 2023
Judge Dismisses Elder Abuse Suit Against LTC Insurer, Cites Inadequate Pleading

SAN FRANCISCO — A California federal judge dismissed a breach of contract and elder abuse suit filed against a couple’s long-term care (LTC) insurer for its failure to cover the wife’s claim for benefits, finding that though the amended complaint contains “a bundle of allegations that might constitute plausible causes of action with some additional facts,” the amended complaint does not currently suffice to “allow this case to proceed.”
September 11, 2023
Judge Approves Consent Decree In Hiring Algorithm Age Discrimination Case

BROOKLYN, N.Y. — A federal judge in New York on Sept. 8 approved a consent decree resolving Equal Employment Opportunity Commission allegations that a trio of English-language tutoring companies excluded more than 200 applicants on age-related grounds by training their hiring algorithm to identify and reject older applicants.
September 11, 2023
8th Circuit Affirms Remand Of COVID Death Suit Against Care Home

ST. LOUIS — The Eighth Circuit U.S. Court of Appeals affirmed a district court’s order that remanded to state court a wrongful death suit filed against a nursing home and related entities by the son of a man who died after purportedly contracting COVID-19 at the nursing home, finding, in part, that the district court correctly remanded the case because the son’s claims are not preempted under the Public Readiness and Emergency Preparedness (PREP) Act.
September 11, 2023
Panel Says Son Of Decedent Not Bound To Arbitrate In Death Suit Against Care Home

SANTA ANA, Calif. — A California appellate court affirmed a lower court’s denial of a nursing home’s motion to compel arbitration in a negligence and wrongful death suit filed against it by the son of a resident who signed an arbitration agreement as a representative for his mother, finding that the nursing home failed to show that the son had the authority to sign on his mother’s behalf and that his “signatures on the agreement are expressly noted as being in the capacity of a representative.”
September 08, 2023
DOJ Says New Jersey Violated 14th Amendment Rights Of Veterans Homes’ Residents

WASHINGTON, D.C. — After conducting an almost three-year investigation into two New Jersey-run veterans homes, the U.S. Department of Justice (DOJ) on Sept. 7 released a 43-page report finding that it has “reasonable cause” to believe that by failing to provide adequate care during the COVID-19 pandemic, New Jersey violated the 14th Amendment rights of residents at the veterans homes in Menlo Park and Paramus.
September 08, 2023
5th Circuit Affirms Judgments For Hospital, Doctor In Suit Over Ventilator Removal

NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals affirmed a district court’s judgments consolidated on appeal that dismissed parents’ wrongful death suit against a hospital, medical practice and a doctor after their son died when the doctor removed him from a ventilator, finding that the parents failed to show the municipal liability required for a due process violation and that the Texas Advance Directives Act (TADA) “does not create a substantive interest” for the parents or their son.
September 07, 2023
Louisiana Panel Affirms, Finds Transfer-On-Death Designation Form Invalid

GRETNA, La. — A Louisiana appeals court on Sept. 6 affirmed a lower court’s determination that a transfer-on-death (TOD) beneficiary designation of a brokerage account was invalid, finding that the TOD form at issue is not an exception to the state law “general rule that property owned by a decedent at death will pass to her heirs via succession.”
August 29, 2023
Pennsylvania High Court Finds That Trust Created By Voided POA Is ‘Nullity’

PITTSBURGH — The Pennsylvania Supreme Court vacated an appellate court’s decision and reinstated an orphans’ court order determining that an irrevocable trust was invalid because it was created by an agent under a power of attorney (POA) that was deemed void ab initio, finding that “when a court concludes that a power of attorney is a nullity, any action taken under the auspices of the power of attorney is likewise a nullity.”
August 29, 2023
Michigan Panel Affirms Order Granting Octogenarian’s Request To Alter Estate Plan

DETROIT — A Michigan appellate court affirmed a lower court’s orders consolidated on appeal that denied a successor trustee’s petition to register a trust and granted the petition of the octogenarian trustee to revise his estate plan and disinherit his nieces and nephews, finding, in part, that the nieces and nephews failed to show that there were disputed facts regarding the trustee’s testamentary capacity and that their arguments about undue influence are waived because they failed to raise that issue at trial.
August 28, 2023
3rd Circuit Reverses Judgment For Hospice Agency In Medicare Fraud Suit

PHILADELPHIA — The Third Circuit U.S. Court of Appeals on Aug. 25 reversed and remanded a district court’s grant of summary judgment to a hospice provider whose former employees alleged that the provider violated the federal False Claims Act (FCA) by fraudulently billing Medicare in admitting and recertifying patients who were not actually eligible for hospice, finding that while the government’s failure to act for a long period of time is evidence of a lack of the materiality required under the FCA, “it was erroneous to treat this factor as determinative of immateriality.”