Mealey's Elder Law

  • October 16, 2017

    Ohio Court Finds Estate Was Bound By Nursing Home’s Arbitration Agreement

    TOLEDO, Ohio — After finding that a nursing home’s arbitration agreement was not void or unconscionable, an Ohio appeals court on Sept. 29 affirmed a trial court’s decision to compel arbitration of a survivorship claim asserted by the estate of a former resident who died (Noel Donnell v. Parkcliffe Alzheimer’s Community, et al., No. 17-001, Ohio App., 6th Dist., Wood Co., 2017 Ohio App. LEXIS 4317).

  • October 16, 2017

    Nursing Home Chain Accused Of Dumping Medi-Cal Residents Into Hospitals

    SACRAMENTO, Calif. — A complaint filed Oct. 2 in a California trial court accuses Cathedral Pioneer Church Homes II, RFH Foundation and their corporate affiliates of illegally dumping Medi-Cal residents into hospitals and refusing to allow them to return, even with hospital clearance, to increase revenues and make space for more lucrative Medicare and private-pay residents (Gloria Single, et al. v. Cathedral Pioneer Church Homes II, et al., No. 34-2017-00220058, Calif. Super., Sacramento Co.).

  • October 16, 2017

    Judge Partly Grants Motion To Compel Arbitration In Dispute Over Inadequate Care

    LOUISVILLE, Ky. — A Kentucky federal judge on Sept. 26 refused to dismiss a senior care facility’s lawsuit seeking to compel arbitration of state court claims alleging that its inadequate care caused the death of one of its patients, granting the facility’s petition to compel arbitration as to all claims except wrongful death (Golden Gate National Senior Care, LLC, et al. v. Ray Hudson, No. 17-00431, W.D. Ky., 2017 U.S. Dist. LEXIS 157530).

  • October 13, 2017

    Michigan Panel Affirms Conviction For Embezzlement From A Vulnerable Adult

    DETROIT — A Michigan appeals panel on Oct. 10 rejected an appellant’s argument that the evidence was insufficient to convict her of embezzlement from a vulnerable adult, affirming the $20,000 to $50,000 and the 180-day jail sentence awarded against her  (People of the State of Michigan v Darcy Lin Loomis, No. 334693, Mich. App., 2017 Mich. App. LEXIS 1544).

  • October 13, 2017

    Panel Affirms Trust Invalid, Finds Trust Assets Should Be Treated As Probate Assets

    INDIANAPOLIS — An Indiana appeals panel on Oct. 4 affirmed a lower court’s finding that a trust was invalid because of undue influence and that the assets held in the trust should be treated as probate assets (Reodine S. Harding Revocable Trust, by Ryan Harding, trustee, et al. v. Mary Lou Wolfe, No. 71A03-1702-PL-281, Ind. App., 2017 Ind. App. Unpub. LEXIS 1321).

  • October 12, 2017

    7th Circuit To Hear Arguments On Age Bias Disparate Impact Claims By Applicants

    CHICAGO — The Seventh Circuit U.S. Court of Appeals is set to hear oral arguments on Oct. 23 in a case concerning whether job applicants may bring disparate impact claims under the Age Discrimination in Employment Act (ADEA) (Dale E. Kleber v. CareFusion Corp., No. 17-1206, 7th Cir.).

  • October 12, 2017

    11th Circuit Says Plan Did Not Have Actual Knowledge Of Employee’s Incompetence

    ATLANTA — The 11th Circuit U.S. Court of Appeals on Oct. 10 affirmed a district court’s grant of summary judgment in favor of a retirement plan administrator after determining that the administrator’s refusal to reinstate an employee’s retirement benefits, based on the fact that the employee was found to incompetent and had a court-appointed conservator, was reasonable because the administrator did not have actual knowledge of the employee’s incompetence  (Michael E. Bauman, by and through Michael E. Sumner, conservator, v. Publix Super Markets, Inc. Employee Stock Ownership Plan et al., No. 17-11709, 11th Cir., 2017 U.S. App. LEXIS 19760).

  • October 10, 2017

    Employee’s Attorney Asks High Court To Find Age Bias Appeal Was Timely

    WASHINGTON, D.C. — Only Congress can set the jurisdiction of trial courts under the nation’s constitutional structure, and based on that principle, Federal Rule of Appellate Procedure 4(a)(5)(C) is nonjurisdictional, the attorney representing an employee in an age bias dispute argued Oct. 10 before the U.S. Supreme Court, adding that as a result, a district court may extend the time to appeal “as long as a motion is timely filed and there has been a showing of excusable neglect or good cause” (Charmaine Hamer v. Neighborhood Housing Services of Chicago, et al., No. 16-658, U.S. Sup.).

  • October 6, 2017

    Illinois Appeals Panel Affirms Defense Verdict In Medical Malpractice Suit

    ELGIN, Ill. — A panel of the Second District Illinois Appellate Court on Oct. 4 affirmed a defense verdict in a medical malpractice suit after finding that the trial court did not err in allowing two expert witnesses to testify and that there was not any improper contact between a hospital’s attorneys and one of its former employees (Judith Caldwell v. Advocate Condell Medical Center, No. 2-16-0456, Ill. App., 2nd Dist., 2017 Ill. App. LEXIS 638).

  • October 6, 2017

    11th Circuit Finds Firing For Theft Of Intellectual Property Was Not Pretextual

    ATLANTA — A chemist was unable to show that his termination for alleged theft of intellectual property, insubordination and poor performance was a pretext for age or race discrimination, an 11th Circuit U.S. Court of Appeals panel ruled Oct. 3, affirming a trial court’s decision (Moses Langford v. Magnolia Advance Materials, Inc., No. 17-11100, 11th Cir, 2017 U.S. App. LEXIS 19113).

  • October 4, 2017

    Alabama Court Finds Will Was Valid, Notary Can Serve As Witness

    MONTGOMERY, Ala. — The Alabama Supreme Court on Sept. 29 reversed a court’s decision to revoke letters of administration that were left to a personal representative of an estate, finding that a notary who signed the will in her official capacity also served as a second witness to the signing, as required by Alabama law (Janice Pickens v. Estate of Donald Harrison Fenn, No. 1160202, Ala. Sup., 2017 Ala. LEXIS 100).

  • October 4, 2017

    Only 1 Plaintiff Can Proceed With Breach Of Contract Claim In Long-Term Care Dispute

    CINCINNATI — An Ohio federal judge on Sept. 29 determined that only one of two plaintiffs can proceed with a breach of contract claim against an insurer that issued long-term care policies because Florida law banning the use of a hospital confinement provision includes the policy issued to only one of the plaintiffs (Maybelle Z. Smith v. Continental Casualty Co., d/b/a CNA Insurance, No. 16-616, S.D. Ohio, 2017 U.S. Dist. LEXIS 161558). 

  • October 3, 2017

    11th Circuit Upholds Ruling For Postmaster On Worker’s Bias, Retaliation Claims

    ATLANTA — An 11th Circuit U.S. Court of Appeals panel on Sept. 26 affirmed a trial court’s summary judgment ruling for the postmaster general, finding that a postal worker claiming race and age bias, a hostile work environment and retaliation failed to show pretext or that she suffered any adverse action (Armanda Coles v. Post Master General United States Postal Services, No. 16-15364, 11th Cir., 2017 U.S. App. LEXIS 18532).

  • October 3, 2017

    High Court Will Not Review Suit Alleging Fraudulent Concealment Of Bedsores

    WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 2 denied a petition for a writ of certiorari, refusing to review a Maryland appeals court’s ruling that a daughter cannot maintain a claim of fraudulent concealment against a hospital that cared for her mother and allegedly concealed the existence of her mother’s bedsores because the daughter failed to prove that the mother’s health care providers owed her any duty of care (Celeste Puppolo, personal representative of the estate of Nancy V. Puppolo v. Holy Cross Hospital of Silver Spring Inc., No. 16-1410, U.S. Sup., 2017 U.S. LEXIS 4788).

  • October 3, 2017

    U.S. High Court Won’t Review 5th Circuit Ruling Finding ADEA Bars Damages

    WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 2 denied a petition for writ of certiorari filed by an employee asking the high court to overturn a decision by the Fifth Circuit U.S. Court of Appeals holding that no damages beyond lost wages are available in retaliation cases under the Age Discrimination in Employment Act (ADEA) (Susan L. Vaughan v. Anderson Regional Medical Center, No. 16-1386, U.S. Sup.).

  • October 2, 2017

    Supreme Court Won’t Hear Chrysler Executives’ Age Discrimination Appeal

    WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 2 denied a petition for writ of certiorari filed by former Chrysler Corp. executives who lost benefits under the company’s retirement plan asking the high court to determine whether a state law age discrimination claim relating to employee benefits that is untimely under the Age Discrimination in Employment Act (ADEA) is preempted by the Employee Retirement Income Security Act (ERISA) (John Loffredo, et al. v. Daimler AG, et al., No. 16-1334, U.S. Sup.).

  • October 2, 2017

    Ex-Tribal Worker Challenging Sovereign Immunity Ruling Turned Down By High Court

    WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 2 denied a petition for a writ of certiorari filed by a longtime employee of an Alabama Indian tribe seeking review of a federal court’s dismissal of an age discrimination claim she leveled against the tribe after she was fired (Christine J. Williams v. Poarch Band of Creek Indians, No. 16-1324, U.S. Sup.).

  • October 2, 2017

    $1.2M Award For Nursing Home Abuse Was Not Excessive, 10th Circuit Panel Determines

    DENVER — A district court did not err in refusing to reduce a $1.2 million compensatory damage award to comply with Oklahoma’s statutory cap of $350,000 because there is substantial evidence in the record to support the compensatory damage award in favor of the plaintiffs whose mother was abused while a patient in a nursing home and because the defendant failed to raise the statutory cap as an affirmative defense, the 10th Circuit U.S. Court of Appeals said Sept. 28 (Doris Racher, et al. v. Westlake Nursing Home Limited Partnership, et al., No. 16-6011, 10th Cir., 2017 U.S. App. LEXIS 18725).

  • September 29, 2017

    Louisiana Panel: Strike By Nursing Assistant Qualifies As Medical Malpractice

    SHREVEPORT, La. — A nursing home resident who was struck by a certified nursing assistant when he fought her attempts to change his diaper has shown that the action qualified as medical malpractice under the Louisiana Medical Malpractice Act (LMMA) and is subject to review by the medical review panel, a Louisiana appellate panel ruled Sept. 27, reversing a trial court’s judgment that sustained the exception of prescription in favor of the nursing home and dismissed all claims (John Mack Evans, Sr. v. Heritage Manor Stratmore Nursing & Rehabilitation Center, L.L.C., et al., No. 51, 651-CA, La. App., 2nd Cir., 2017 La. App. LEXIS 1715).

  • September 28, 2017

    Circumstances Did Not Warrant Visitation For Grandmother, Court Finds

    BALTIMORE — After finding that a grandmother failed to show that her daughter and husband were unfit parents or that exceptional circumstances existed showing that the children would suffer harm caused by a termination of contact, a Maryland appeals panel on Sept. 25 affirmed a trial court’s decision to dismiss her petition for grandparent visitation (Gail Yvonne Stinchcomb v. Tiffany Trautman, et al., No. 2601, September Term, 2016, Md. Spec. App., 2017 Md. App. LEXIS 981).