Mealey's Elder Law

  • May 06, 2021

    Divided Georgia Panel Reverses Judgment Based On In Terrorem Clause

    ATLANTA — A man violated the in terrorem clause in his father’s trust by suing his sisters, claiming that they unduly influenced their father into changing his estate plan and, therefore, forfeited any benefits under the trust, a divided Georgia panel ruled April 27, reversing a trial court’s post-verdict final judgment imposing a $790,666 constructive trust in the man’s favor and remanding the case for further proceedings.

  • May 06, 2021

    Nursing Home Defendants Appeal Remand Of COVID Negligence Suit To 5th Circuit

    FORT WORTH, Texas —  The owners and operators of a nursing home on May 5 informed a federal district court that they are appealing to the Fifth Circuit U.S. Court of Appeals the court’s April 5 opinion and order remanding a COVID-19-related negligence suit against them to Texas state court.

  • May 06, 2021

    Finding No Health Care Liability Claim, Split Texas Court Vacates Dismissal

    DALLAS — A negligence action arising from the death of an assisted living facility resident who was injured in a fall while a facility employee pushed her along a public sidewalk sounds in premises liability and does not constitute a health care liability claim (HCLC) under the Texas Medical Liability Act (TMLA), the Fifth District Texas Court of Appeals ruled May 3 in a split en banc decision, vacating the trial court’s judgment dismissing the claims pursuant to the TMLA and remanding for further proceedings.

  • May 05, 2021

    Mississippi High Court Affirms Dismissal Of Will Challenge By Siblings As Untimely

    JACKSON, Miss. — A divided Mississippi Supreme Court on April 29 affirmed a lower court’s finding that the failure of a decedent’s daughter and sole heir to join her two siblings to a probate proceeding did not constitute concealed fraud that tolled the statute of limitations in the sibling’s action to challenge their father’s will.

  • May 05, 2021

    Some Claims Remain, Others Dismissed In California Retirement Community Fees Case

    SAN JOSE, Calif. — A financial elder abuse claim, a claim relating to compliance with sections of the California law governing continuing care retirement communities (CCRCs) and several claims under the unfair competition law (UCL) survive in a long-running case after a California federal judge on April 21 partly denied and partly granted motions to dismiss claims from residents’ third amended complaint (TAC) alleging that the owner of their CCRC failed to maintain a refund reserve of entrance fees as required by contract and state law.

  • May 05, 2021

    2nd Circuit Reverses District Court Dismissal Of Facilities’ CMS Rule Challenge

    NEW YORK — A challenge to a final rule promulgated by the Centers for Medicare and Medicaid Services (CMS) that does not require a registered nurse to participate in investigative surveys of nursing facilities initiated in response to complaints is independently rooted in the Medicaid Act and, therefore, not precluded by the Medicare Act’s review provisions, the Second Circuit U.S. Court of Appeals ruled April 27, reversing and remanding a federal district court’s dismissal of a suit filed by skilled nursing facilities seeking pre-enforcement review of the rule.

  • May 05, 2021

    7th Circuit Upholds Denial Of Age Bias Claims By Professor Removed As Chair

    CHICAGO — A university professor who was promoted to department chair, later removed and then denied appointment to full professor for approximately a year failed to show that his age or his refusal to implement an allegedly age biased policy led to retaliation, a Seventh Circuit U.S. Court of Appeals panel ruled April 26.

  • May 05, 2021

    Panel Affirms Lack Of Agreement To Arbitrate Claims Against Assisted Living Facility

    SACRAMENTO, Calif. — A trial court did not use “improper legal criteria” to conclude that the son of an assisted living facility resident was required to have a power of attorney for health care to sign an arbitration agreement on his mother’s behalf, a California appellate panel ruled April 28 in affirming the lower court’s denial of the facility’s petition to compel arbitration of an elder abuse and wrongful death suit against it.

  • May 03, 2021

    9th Circuit To Decide Government, Nursing Home Relationship In COVID-19 Death Suit

    SAN FRANCISCO — The family of a man who died in a nursing home after contracting COVID-19 argues to the Ninth Circuit U.S. Court of Appeals in an April 28 brief that a lower federal court properly remanded its wrongful death suit against a nursing home to a state court because the facility was not performing federal governmental functions.  The nursing home says in its appeal that the federal government and nursing homes have a special relationship in light of the national public health emergency.

  • April 30, 2021

    U.S. High Court Seeks Response In Suit Over Access To Public-Sector Employee Info

    WASHINGTON, D.C. — The U.S. Supreme Court on April 29 requested a response from Washington state officials who previously waived their right to respond to a petition for a writ of certiorari filed by individuals and a group seeking to replace incumbent unions representing public-sector employees and arguing that a state law meant to protect the elderly from financial crimes contains a provision that prevents them from being able to communicate with public-sector employees who serve the elderly.

  • April 30, 2021

    Washington Court Reverses Denial Of Statutory Award Increase To Surviving Spouse

    SPOKANE, Wash. — A Washington appeals court on April 22 reversed and remanded in part a trial court’s refusal to increase a surviving spouse’s statutory award, holding that the lower court employed the wrong statutory standard in a dispute between a widower and his stepson over a decedent’s will.

  • April 29, 2021

    Judge Enters Default Judgment, Awards More Than $2M For Elder Fraud, UCL Claims

    SACRAMENTO, Calif. — A California federal judge on April 27 adopted in full a magistrate’s recommendations and entered default judgment for more than $2 million in damages and attorney fees against a defendant accused of defrauding an elderly man and his wife and violating California law, including the unfair competition law (UCL), who has not answered or appeared in the suit.

  • April 29, 2021

    Plaintiffs, Lowe’s Defendants Advise Court Of Settlement In 401(k) Class Action

    STATESVILLE, N.C. — Participants in and beneficiaries of the Lowe’s Cos. Inc. 401(k) Plan who challenged the move of more than $1 billion in plan assets to a growth fund managed by Aon Hewitt have advised a North Carolina federal judge that they have reached a class action settlement with the Lowe’s defendants.

  • April 29, 2021

    Alabama Probate Court Ruling In Will Contest Vacated For Lack Of Jurisdiction

    MONTGOMERY, Ala. — Ruling that a state probate court lacked subject matter jurisdiction in a will contest under state law because a party properly requested that the suit be transferred to a state circuit court, the Alabama Supreme Court on April 16 vacated the probate court’s judgment and dismissed an appeal.

  • April 29, 2021

    Judge Denies Transfer, Grants Remand In COVID-19 Death, Says PREP Act Doesn’t Apply

    LOS ANGELES — Ruling that the Public Readiness and Emergency Preparedness (PREP) Act doesn’t apply to claims asserted in a residential care facility COVID-19 death case, a California federal judge on April 16 found a lack of federal jurisdiction, denied transfer to the U.S. District Court for the District of Columbia and granted remand to state court.

  • April 28, 2021

    11th Circuit Affirms Dismissal Of Suit Accusing Hospice Of Kickback Scheme

    ATLANTA — The 11th Circuit U.S. Court of Appeals on April 26 affirmed the dismissal of a False Claims Act (FCA) lawsuit accusing a hospice of engaging in a scheme that paid illegal kickbacks to physicians who referred patients to its care and then submitted fraudulent claims to Medicare, finding that the allegations in the relators’ complaint did not satisfy the heightened pleading requirement of Federal Rule of Civil Procedure 9(b) and that the relators lacked sufficient knowledge of the scheme that could give rise to some indicia of reliability.

  • April 27, 2021

    Breach Of Contract, Fraud Claims To Proceed Against Long-Term Care Insurer

    CHICAGO — An Illinois federal judge on April 26 determined that an insured’s breach of contract, fraud and fraudulent omission claims alleged against a long-term care insurer arising out of the insurer’s allegedly inconsistent premium increases can proceed; however, the judge said the insured’s bad faith and deceptive business practices claims must be dismissed.

  • April 27, 2021

    COVID-19 Wrongful Death Case In Which U.S. Filed Statement Of Interest Is Remanded

    NASHVILLE, Tenn. — A Tennessee federal judge on April 21 remanded a COVID-19-related wrongful death case in which the United States filed a statement of interest regarding the preemptive effect of the Public Readiness and Emergency Preparedness (PREP) Act, holding — as all other district courts but one have on similar claims against facilities such as nursing homes — that the act does not completely preempt state law claims and, therefore, there is no federal jurisdiction.

  • April 22, 2021

    High Court:  Disability Claimants Didn’t Forfeit Appointments Clause Challenges

    WASHINGTON, D.C. — Social Security disability benefits claimants who failed to raise appointments clause challenges during their administrative proceedings and did so only after the U.S. Supreme Court’s ruling in Lucia v. SEC did not forfeit their rights to first challenge the appointments of their administrative law judges (ALJs) in federal court, the U.S. Supreme Court ruled April 22.

  • April 21, 2021

    Illinois Court Reverses Arbitration Denial In Suit Over Patient’s Pressure Sores

    CHICAGO — An Illinois appellate panel on April 16 reversed and remanded the denial of a motion to compel arbitration to determine questions regarding a health care arbitration agreement (HCA) signed by a decedent’s guardian.  The appellate court also said it lacked jurisdiction to review the denial of the long-term care facility and its owner’s motion to dismiss the negligence suit over the decedent’s pressure sores.