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Mealey's Elder Law

  • August 20, 2018

    Majority Affirms Ruling Authorizing Guardian To Withdraw Life-Sustaining Treatment

    NEW YORK — A majority of a New York appellate court on Aug. 16 affirmed a lower court’s ruling that granted a doctor’s petition to authorize the withdrawal of life-sustaining treatment for a developmentally disabled octogenarian in accordance with his guardian, finding that the lower court’s ruling was consistent with requirements for the withdrawal of life-sustaining treatment under the Surrogate's Court Procedure Act (SCPA) (In re Mark F. Sloane, M.D., etc. v M.G., No. 160704/16, 5872, N.Y. Sup., App. Div., 1st Dept., 2018 N.Y. App. Div. LEXIS 5750).

  • August 20, 2018

    6th Circuit: GE Bargaining Agreement Didn’t Vest Health Care Benefits For Life

    CINCINNATI — Case law, including M & G Polymers USA, LLC v. Tackett and the “deluge of cases” decided since, stipulates that a collective bargaining agreement (CBA) between General Electric Co. (GE) and multiple unions did not vest lifetime retirement health care benefits, a Sixth Circuit U.S. Court of Appeals panel ruled Aug. 16 (IUE-CWA, et al. v. General Electric Co., No. 17-3885, 6th Cir., 2018 U.S. App. LEXIS 22813).

  • August 16, 2018

    Age Bias Class Suit Largely Permitted To Proceed Against FCA

    DETROIT — A class suit accusing FCA US LLC of using an evaluation process that discriminates against employees who are 55 and older may proceed, a Michigan federal judge ruled Aug. 6, granting a dismissal motion only as to the individual claims by one of four named plaintiffs and rejecting the employer’s argument that the Age Discrimination in Employment Act (ADEA) does not permit a class definition that excludes employees aged 40 to 54 (Dan Cerjanec, et al. v. FCA US, LLC, No. 17-10619, E.D. Mich., 2018 U.S. Dist. LEXIS 131434).

  • August 15, 2018

    2nd Circuit Reinstates RICO Claim In Siblings’ Battle Over Father’s Estate

    NEW YORK — A sister who accuses her younger brother of running her father’s estate “as his personal piggy bank” may proceed with claim for legal expenses incurred in filing her complaint under the Racketeer Influenced and Corrupt Organizations (RICO) Act against him and others, a Second Circuit U.S. Court of Appeals panel ruled Aug. 14, vacating a trial court’s dismissal of the sister’s case and remanding for the district court to revisit the question of whether it should exercise supplemental jurisdiction over state law claims (Virginia A. D’Addario, et al. v. David D’Addario, et al., No. 17-1162, 2nd Cir., 2018 U.S. App. LEXIS 22472).

  • August 15, 2018

    Nebraska Panel Says Doctor’s Affidavit Showed Nursing Home Not Liable For Death

    LINCOLN, Neb. — A trial court judge in Nebraska did not abuse his discretion when awarding summary judgment to a skilled nursing facility,  a state appeals court panel ruled Aug. 7 finding that an affidavit submitted by a general practitioner provided sufficient causation evidence to show that the facility applied the appropriate standard of care and that it was not liable for a patient’s injuries and death (David Apkan v. Life Care Centers of America Inc., et al., No. A-17-162, Neb. App., 2018 Neb. App. LEXIS 201).

  • August 14, 2018

    Petitioner: Court’s Ruling Allows Employer To Evade Reach Of ERISA, ADEA

    WASHINGTON, D.C. — A petitioner on Aug. 2 asked the U.S. Supreme Court to reverse the Seventh Circuit U.S. Court of Appeals’ finding that an amendment to a pension plan's calculation of retirement income credits does not violate the Employee Retirement Income Security Act's anti-cutback rule, arguing that the lower court’s ruling puts ERISA and the Age Discrimination in Employment Act at stake (James P. Teufel v. The Northern Trust Co., et al., No. 18-163, U.S. Sup.)

  • August 13, 2018

    Care Facility Resident Sues Nursing Home, Owner For Negligence After Fall

    CLEVELAND — A former short-term therapy resident at a nursing home sued the facility and its owner on Aug. 9 in an Ohio court, alleging that their negligence caused her to fall and break her leg, resulting in the need for surgery and physical therapy (Elsbeth Bosinger v. Seven Hills Healthcare Group LLC, et al., No. 18 901856, Ohio Comm. Pls., Cuyahoga Co.).

  • August 10, 2018

    Pennsylvania Judge Holds Nursing Home’s Arbitration Clause Is Unconscionable

    PHILADELPHIA — After finding that the evidence showed that a Medicare recipient’s son felt forced into signing a nursing home admissions agreement that provided for arbitration and that the agreement was procedurally and substantively unconscionable, a Pennsylvania judge on Aug. 1 ruled on remand  that he was not bound to arbitrate his survival claim against the facility (Roy J. Burkett Jr. v. St. Francis Country House, et al., No. 02585, Pa. Comm. Pls., Philadelphia Comm. Pleas, 1st Dist.).

  • August 9, 2018

    Judge Holds Nursing Home Resident Had Capacity, Compels Arbitration

    PHILADELPHIA — After finding no genuine issue of material fact regarding a nursing home resident’s capacity to sign an admissions agreement containing an alternative dispute resolution clause and that the agreement was not unconscionable, a Pennsylvania federal judge on Aug. 6 granted the nursing home’s motion to compel arbitration of all of her injury-related claims (Golden Gate National Senior Care, LLC, et al. v. Linda Killian, No. 17-2732, E.D. Pa., 2018 U.S. Dist. LEXIS 132114).

  • August 9, 2018

    Judge Reject’s Insurer’s Challenges To Wrongful Death Suit Proceeding In California

    SAN DIEGO — After finding that an insurer availed itself of a California forum when it approved medical care for a Medicare beneficiary who allegedly died there while waiting for a lung transplant, a California federal judge on July 26 refused to dismiss the case for lack of personal jurisdiction and improper venue and denied a request to transfer the case to Utah (Naomi Aylward, et al. v. SelectHealth Inc., et al., No. 18cv494, S.D. Calif., 2018 U.S. Dist. LEXIS 125497).

  • August 9, 2018

    Tennessee Panel Vacates $28 Million Award, Orders New Punitive Damages Trial

    KNOXVILLE, Tenn. — On Aug. 6 the Tennessee Court of Appeals left intact a jury’s determination that the family of a nursing home patient is entitled to punitive damages from the facility but vacated a $28 million punitive damage award upon reversing the jury’s findings of direct and vicarious liability by the facility’s parent companies and two individual officers (Cindy Hatfield v. Allenbrooke Nursing Home LLC, No. W2017-00957-COA-R3-CV, Tenn. App., 2018 Tenn. App. LEXIS 450).

  • August 9, 2018

    Idaho High Court Affirms Undue Influence Ruling In Will Dispute

    BOISE, Idaho — The Idaho Supreme Court on July 30 upheld a decision by an Idaho magistrate court that one son of a now-deceased woman exerted undue influence over her when he helped her prepare a holographic will leaving everything to him and acted improperly when he transferred all of her assets, prior to her death, to himself, leaving the estate with nothing (In the Matter of the Estate of Victoria H. Smith, No. 45313, Idaho Sup., 2018 Ida. LEXIS 141).

  • August 9, 2018

    Majority: Court Erred In Denying Petition Seeking Omitted Spouse’s Share Of Estate

    MONTGOMERY, Ala. — A majority of the Alabama Supreme Court on July 27 found that a lower court erred in ruling that an alleged common-law surviving spouse’s petition seeking an omitted spouse's share of a decedent’s estate was time-barred, further finding that there is conflicted evidence regarding whether a common-law marriage existed (Charlotte Harbin v. Glenn E. Estess, Jr., et al., No. 1170209, Ala. Sup., 2018 Ala. LEXIS 72).

  • August 7, 2018

    Alabama High Court Panel Rejects Appeals Over Nursing Home’s Arbitration Clause

    MONTGOMERY, Ala. — An Alabama Supreme Court panel on July 27 dismissed two appeals challenging a trial court judge’s decisions denying a nursing home’s motion to compel arbitration of a wrongful death suit and a woman’s motion for partial summary judgment, ruling that the validity of the provision must be decided first (Aurora Healthcare Inc., et al. v. Sharon Ramsey, Nos. 1160658, 1160726, Ala. Sup., 2018 Ala. LEXIS 71).

  • August 6, 2018

    9th Circuit: District Court Must Consider Employee’s Filing With Labor Department

    SAN FRANCISCO — A Ninth Circuit U.S. Court of Appeals panel on July 13 vacated a trial court’s dismissal of an employee’s lawsuit alleging wrongful termination and bias and remanded for the district court to decide whether the employee’s filing of a charge with the commonwealth of the Northern Mariana Islands (CNMI) Department of Labor could be considered as constructively filing claims with the Equal Employment Opportunity Commission (Garabed O. Mirzoian v. Michael N. El-Rahi, et al., No. 18-15367, 9th Cir., 2018 U.S. App. LEXIS 19289).

  • August 6, 2018

    4th Circuit Panel Reinstates, Reduces Punitive Damages Against Nursing Home

    RICHMOND, Va. — A Fourth Circuit U.S. Court of Appeals panel on Aug. 2 found that a nursing home, its owner and the company that managed the facility should pay punitive damages to the families of three people who died while in a wing for ventilator-dependent patients, but reduced the amounts after finding that the original awards issued by a jury exceeded North Carolina law (Geraldine L. Vandevender, et al. v. Blue Ridge of Raleigh LLC, et al., Nos. 17-1900, 17-1951, 4th Cir., 2018 U.S. App. LEXIS 21464).

  • August 3, 2018

    Divided Michigan Supreme Court: Wife Not ‘Willfully Absent’ From Husband

    LANSING, Mich. — By a 4-3 margin, the Michigan Supreme Court ruled July 31 in what was deemed a case of first impression that complete, intentional physical and emotional absence for more than one year is required to establish that a spouse was “willfully absent” from his or her decedent (In re:  Estate of Erwin, Nos. 153980-153981, Mich. Sup., 2018 Mich. LEXIS 1570).

  • August 1, 2018

    Judge Upholds Man’s $29.9M False Tort Claims Act Award For Kidney Injuries

    EAST ST. LOUIS, Ill. — A federal judge in Illinois on July 27 denied the federal government’s motion to reconsider an earlier ruling awarding a man $29.9 million in damages for kidney injuries he suffered as a result of his treatment for uncontrolled hypertension at a federally funded clinic, holding that $13.75 million in noneconomic damages were supported by similar verdicts (Kevin Clanton v. United States, No. 15-CV-124-NJR-RJD, S.D. Ill., 2018 U.S. Dist. LEXIS 126047).

  • August 1, 2018

    7th Circuit Upholds Ruling For Employer In Age Bias Suit Reinstated By High Court

    CHICAGO — Despite a November ruling by the U.S. Supreme Court finding that employee Charmaine Hamer could proceed with her age discrimination case, a Seventh Circuit U.S. Court of Appeals panel on July 30 affirmed a trial court ruling for Hamer’s employer, finding that Hamer failed to establish a causal link between an adverse employment action and her bias complaint (Charmaine Hamer v. Neighborhood Housing Services of Chicago, et al., No. 15-3764, 7th Cir., 2018 U.S. App. LEXIS 21003).

  • July 30, 2018

    Tennessee Appeals Court Finds Daughter’s Taking Of Funds, Property Was Improper

    NASHVILLE, Tenn. — The daughter of a Tennessee woman who transferred funds from her mother’s account to her own and prepared a quitclaim deed for her mother’s property, all under a power of attorney (POA), failed to meet her burden to refute a presumption of undue influence, a Tennessee appeals panel ruled July 25 (Lucas D. Bottorff, et al. v. Anne A. Sears, et al., No. 45788, Tenn. App., 2018 Tenn. App. LEXIS 430).