Mealey's Elder Law

  • December 8, 2017

    Parties Debate Whether High Court Should Review Arbitration Clause’s Enforceability

    WASHINGTON, D.C. — The estate of a woman who allegedly died as a result of injuries she suffered at a hospital urges the U.S. Supreme Court in a Nov. 27 brief to deny the hospital’s petition for certiorari seeking reversal of a Florida court’s decision that an arbitration provision in the woman’s admissions agreement was unenforceable, disputing the hospital’s argument that reversal is required in light of the high court’s recent ruling in Kindred Nursing Ctrs. Ltd. P'Ship v. Clark, 137 S. Ct. 1421, 1426-27 (2017)

  • December 6, 2017

    California Appeals Panel Affirms Summary Judgment In Slip-And-Fall Suit

    FRESNO, Calif. — In an unpublished opinion released Dec. 4, a panel of the Fifth District California Court of Appeal affirmed summary judgment in a premises liability suit after finding that the plaintiff did not show that employees of a county-run senior center did not have actual or constructive knowledge of a puddle on which a woman slipped (Martha Rijos v. County of Kern, No. F073292, Calif. App., 5th Dist., 2017 Cal. App. Unpub. LEXIS 8267).

  • December 6, 2017

    Maryland Appeals Court Hears Oral Arguments In State’s Suit Against Nursing Facility

    ANNAPOLIS, Md. — The Maryland Court of Appeals on Dec. 5 heard oral arguments in the state’s appeal of the denial of its request for an injunction against a nursing home operator that allegedly violated the Maryland Patient’s Bill of Rights by wrongfully discharging residents in need of care from its nursing facilities (State of Maryland v. Neiswanger Management Services LLC, et al., No. 28, Md. App.).

  • December 6, 2017

    Kentucky Panel Reverses, Remands Order Granting Grandparent Visitation

    FRANKFORT, Ky. — A Kentucky appeals panel on Dec. 1 reversed a lower court’s ruling that granted visitation to the maternal grandmother of a minor, concluding that the lower court’s findings contain few details as to the impact of visitation on the child (Sara Peyton v. Tamela Painter, et al., No. 2017-CA-000451, Ky. App., 2017 Ky. App. Unpub. LEXIS 873).

  • December 4, 2017

    Probate Court Did Not Have Jurisdiction To Order Distribution Of Estate Property

    SALEM, Ore. — An Oregon appeals panel on Nov. 29 held that a probate court did not have jurisdiction to order distribution of the property of an estate in a manner other than that provided pursuant to Oregon Revised Statutes 114.555, ORS 114.555, vacating and remanding a lower court’s ruling (In the Matter of the Estate of Lelah A. Nelson, et al. v. State of Oregon, No. A159314, Ore. App., 2017 Ore. App. LEXIS 1458).

  • December 4, 2017

    Federal Judge: Insurer Didn’t Breach Contract When It Denied Nursing Home Benefits

    SEATTLE — Finding that a long-term-care insurance policy unambiguously defines the requirements of receiving nursing home benefits versus assisted living facility benefits, a Washington federal judge on Nov. 30 affirmed a lower court’s finding that the insurer did not breach the contract when it denied a request for nursing home benefits (Mike Howisey, et al. v. Transamerica Life Insurance Co., No. 17-00009, W.D. Wash., 2017 U.S. Dist. LEXIS 197220).

  • December 1, 2017

    4th Circuit: Airline Agent Failed To Prove Any Bias In His Firing After An Error

    RICHMOND, Va. — An airline ground control agent, who was already on the final level of discipline and contributed to a communication breakdown that led to the overbooking of a plane and resulting delay, was unable to show that his termination was due to age or race discrimination, a Fourth Circuit U.S. Court of Appeals panel ruled Nov. 28 in an unpublished opinion (Michael Tillery v. Piedmont Airlines, Inc., No. 16-2225, 4th Cir., 2017 U.S. App. LEXIS 24074).

  • December 1, 2017

    Representative Of Mother’s Estate Urges High Court To Reverse Dismissal Of Appeal

    WASHINGTON, D.C. — A daughter who is the personal representative for her mother’s estate and trust urges the U.S. Supreme Court in a Nov. 13 brief to reverse and remand the Third Circuit U.S. Court of Appeals’ dismissal of her appeal based on its determination that the appeal could not be considered until a final judgment was issued in a consolidated case (Elsa Hall v. Samuel Hall Jr. et al., No. 16-1150, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 4488).

  • November 30, 2017

    Court Finds Caregiver Lacked Authority To Sign Facility’s Arbitration Agreement

    SACRAMENTO, Calif. — A California appeals court on Nov. 28 denied a residential care facility’s appeal of trial court’s rejection of its request to compel fraud and elder abuse claims asserted by the family of a deceased resident to arbitration, finding that the agreement was signed by the resident’s personal care power of attorney, rather than her health care power of attorney and, therefore, was not valid (Robin Hutcheson v. Eskaton FountainWood Lodge, et al., No. C074846, Calif. App., 3rd Dist. 2017 Cal. App. LEXIS 1044).

  • November 30, 2017

    With Bench Trial Slated For Tribe’s Tax Claims, Judge Allows 7 Experts To Testify

    SEATTLE — A Washington federal judge on Nov. 27 denied seven motions to exclude expert testimony in an Indian tribe’s efforts to avoid state and county taxes for the town it developed, saying that with a bench trial scheduled rather than a jury trial, he will be able to determine at trial whether the experts’ testimony is proper (The Tulalip Tribes, et al. v. The State of Washington, et al., No. 2:15-cv-00940, W.D. Wash., 2017 U.S. Dist. LEXIS 194404).

  • November 29, 2017

    Judge Refuses To Compel Arbitration Of Negligence Claims Against Nursing Home

    VALDOSTA, Ga. — A Georgia federal judge on Nov. 22 denied a nursing home’s motion to dismiss and compel arbitration of negligence claims asserted by the daughter of a deceased resident, finding that the daughter had no legal authority to sign the arbitration agreement and that it was unenforceable (Ange Davis, et al. v. GGNSC Administrative Services LLC, et al., No. 7:17-CV-107, M.D. Ga., 2017 U.S. Dist. LEXIS 193460).

  • November 28, 2017

    Health Care Provider Tells High Court That Petitioner Failed To Show Age Bias

    WASHINGTON, D.C. — The U.S. Supreme Court should grant a petition for writ of certiorari filed by the former employee of a health care provider claiming age discrimination because the petitioner failed “to present evidence of a genuine dispute on an essential element of her claim,” the health care provider argues in its Nov. 14 brief in opposition (Virginia Lay v. Singing River Health System, No. 17-396, U.S. Sup.).

  • November 27, 2017

    Panel Reverses Order Granting Priority To Estate’s Administration Expenses

    SPOKANE, Wash. — Finding that the administrative costs of handling an estate do not take priority over the estate’s debts, a Washington appeals panel on Nov. 16 held that after foreclosure costs, Bank of America deserves full payment of a debt it is owed from the proceeds of a deed of trust sale before any payment is made to a decedent’s estate for administrative costs (In the Matter of the Estate of Jason L. Patton, No. 34590-4-III, Wash. App., Div. 3, 2017 Wash. App. LEXIS 2606).

  • November 27, 2017

    Pennsylvania Supreme Court Affirms $2 Million Verdict In Medical Negligence Suit

    HARRISBURG, Pa. — The Pennsylvania Supreme Court in a Nov. 22 divided opinion affirmed a $2 million verdict in a medical negligence suit after finding that a man who filed a survival action under Medical Care Availability and Reduction of Error Act (MCARE) against a hospital and a nursing home filed suit within the two-year statute of limitations under the act because the statute of limitations begins at the time of death and not the injury (Robert Dubose v. Willowcrest Nursing Home, et al., No. 21 EAP 2016, Pa. Sup. 2017 Pa. LEXIS 3103).

  • November 27, 2017

    Fact Issue Exists As To Whether Decedent Was Unduly Influenced, Panel Say, Reverses

    KNOXVILLE, Tenn. — A Tennessee appeals panel on Nov. 20 reversed and remanded summary judgment in favor of a defendant in a lawsuit brought by the executrix of an estate to establish the rights of the parties to joint bank accounts created by the decedent, finding that there is a genuine issue of material fact regarding whether the decedent was unduly influenced by the defendant (Estate of Bonnie C. Brimer v. Bernice Hennessee, et al., No. E2016-02136-COA-R3-CV, Tenn. App., 2017 Tenn. App. LEXIS 757).

  • November 27, 2017

    U.S. Supreme Court Won’t Hear Class’s Lifetime Health Benefits Appeal

    WASHINGTON, D.C. — The U.S. Supreme Court on Nov. 27 denied a petition for writ of certiorari filed by retirees representing a class of approximately 2,900 individuals and seeking to reverse a decision by the Sixth Circuit U.S. Court of Appeals, which held that a series of collective bargaining agreements (CBAs) did not provide retired employees of an employer and its predecessors with a vested right to lifetime health care benefits (Robert Cole, et al. v. Meritor, Inc., et al., No. 17-413, U.S. Sup.).

  • November 22, 2017

    $1.5M Settlement Reached In False Claims Dispute Over Substandard Nursing Home Care

    JACKSON, Miss. — The operators of a Mississippi nursing home have agreed to pay the United States a total of $1.25 million to resolve allegations that they provided false claims to Medicare and the Mississippi Medicaid program related to the provision of “grossly substandard care” to residents, the U.S. Department of Justice announced Nov. 16.  The same day, a Mississippi federal judge dismissed a relator’s second amended complaint and the United States’ complaint in intervention in the qui tam action after the parties stipulated to dismissal (United States, ex rel., Academy Health Center Inc. v. Hyperion Foundation Inc., et al., No. 10-00552, S.D. Miss.).

  • November 22, 2017

    Ohio Appeals Court Reverses, Remands Ruling On Visitation Rights In Guardianship Dispute

    AKRON, Ohio — The Ninth District Ohio Court of Appeals on Nov. 20 reversed and remanded a probate court’s order denying visitation rights to the ex-husband of a woman found to be incompetent by the probate court because the probate court did not issue any reasons for denying the ex-husband’s motion (In re:  Guardianship of Fourough Bakhtiar, No. 16CA011029, Ohio App., 9th Dist., Lorain Co., 2017 Ohio App. LEXIS 5041).

  • November 22, 2017

    Panel Finds Tennessee Law Prohibits Felon From Acting As Conservator

    NASHVILLE, Tenn. — A Tennessee court on Nov. 17 affirmed a trial court’s decision to remove a woman’s son as her conservator after he was convicted of a felony, finding that he was ineligible to serve as her conservator under Tennessee law (In re Conservatorship of Waltraud E. LeMonte, No. M2016-02205-COA-R3-CV, Tenn. App., 2017 Tenn. App. LEXIS 751).

  • November 20, 2017

    Panel Reverses Dismissal Of Malpractice Claim Against Assisted Living Facility

    SHREVEPORT, La. — A Louisiana appeals panel on Nov. 15 held that the owner of an assisted living facility is a health care provider qualified under Louisiana’s Medical Malpractice Act (MMA) and that alleged negligence against the owner involves an act or treatment that should have been performed or furnished by the owner for, to or on behalf of its 84-year-old patient, reversing and remanding a lower court’s dismissal of a medical review panel proceeding against the owner (In Re:  Medical Review Panel Proceeding of Mildred Louise Lyons, No. 51-750, La., App., 2nd Cir., 2017 La. App. LEXIS  2061).