Mealey's Elder Law

  • April 11, 2022

    Allstate Retirees Argue ERISA Limitations Period In Benefits Termination Petition

    WASHINGTON, D.C. —  Allstate Insurance Co. retirees on March 28 asked the U.S. Supreme Court to review a decision in which their Employee Retirement Income Security Act challenge to termination of a life insurance benefit was denied, arguing that the wrong limitations period was applied and that their fraud claims should have been analyzed under an “in equity” standard.

  • April 11, 2022

    State High Court: Trust Interest Reverted To Surviving Son Upon Brother’s Death

    NEW ORLEANS — The Louisiana Supreme Court on March 25 reversed an appellate court’s decision determining that a deceased son’s interest in his deceased father’s testamentary trust vested in the son’s legatee, the fiancee of the deceased son, finding that under the father’s will establishing separate trusts for his two sons, the surviving son had a vested interest in his deceased brother’s trust because his brother died without descendants.

  • April 11, 2022

    Alabama High Court Affirms Judgment For Decedent’s Son In Will Contest

    MONTGOMERY, Ala. — The Alabama Supreme Court on March 18 affirmed a circuit court’s judgment on behalf of a decedent’s son in his action contesting his father’s purported will naming the decedent’s brother as the sole beneficiary of the estate, finding that the lower court had subject matter jurisdiction over the estate administration and the will contest and did not err in entering a judgment on the jury verdict in favor of the son.

  • April 07, 2022

    9th Circuit Lets Facility Appeal Class Certification In Insufficient Staffing Suit

    SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on April 1 granted the owners of a chain of assisted living facilities permission to appeal a lower court’s November certification of a class in a suit accusing the chain of failing to adequately staff its facilities.

  • April 07, 2022

    California Panel Remands For New Trial On Vicarious Liability In Elder Abuse Suit

    LOS ANGELES —  After rehearing, a California appellate court on April 5 again affirmed a multimillion-dollar jury award to two women who were sexually assaulted by a hospital employee while they were patients at a psychiatric hospital after the women petitioned for rehearing, but unlike in its earlier opinion affirming the trial court’s judgment, reversed and remanded for a new trial on the issue of respondeat superior and ratification, finding sufficient evidence for a jury to determine that the employee was acting within the scope of his employment when he assaulted the women.

  • April 07, 2022

    Judge Reduces Jury’s $15.3 Million Award In Georgia Nursing Home Death Suit

    LAWRENCEVILLE, Ga. — A Georgia state court judge on March 18 reduced a jury’s $15.3 million total damages award to $6.4 million to comply with Georgia’s $250,000 punitive damages cap in a negligence and wrongful death suit filed against a skilled nursing facility by a deceased former resident’s daughter.

  • April 07, 2022

    6th Circuit Refuses To Dismiss Appeal Of Nursing Home COVID Death Remand Ruling

    CINCINNATI — Citing the U.S. Supreme Court’s ruling in BP P.L.C. v. Mayor and City Council of Baltimore that identifying 28 U.S. Code Section 1442 as a ground for removal renders a lower court’s remand order reviewable on appeal, the Sixth Circuit U.S. Court of Appeals on March 25 refused to dismiss an appeal of a district court’s order remanding to state court a COVID-19-related negligence and wrongful death case against the owners, operators and managers of a nursing home.

  • April 06, 2022

    Long-Term Care COVID Death Defendants Seek Rehearing Of 9th Circuit Remand Ruling

    PASADENA, Calif. — Claiming that the Ninth Circuit U.S. Court of Appeals’ Feb. 25 decision affirming the remand to state court of a COVID-19-related wrongful death case against a long-term care facility, its owner and its staff physician conflicts with the U.S. Supreme Court’s decision in Aetna Health Inc. v. Davila and involves “questions of exceptional importance because it addresses Congress’ intent to give federal courts the judicial power to determine the application of the Public Readiness and Preparedness Act (‘PREP Act’) exclusively of state courts,” the nursing home defendants on March 25 jointly moved for panel rehearing and rehearing en banc.

  • April 05, 2022

    Wyoming High Court Affirms Grandparent Visitation Denial, Says Parents Not Unfit

    CHEYENNE, Wyo. — The Wyoming Supreme Court on March 31 said a district court applied the wrong standard in denying a grandparents’ petition for visitation with their five grandchildren but still upheld the ruling, finding that the grandparents failed to show parental unfitness or that the parents’ visitation decisions harmed the grandchildren.

  • April 04, 2022

    Texas High Court Grants Cert In Health Care Liability Suit Against Nursing Home

    AUSTIN, Texas — The Texas Supreme Court on April 1 granted review of an appellate court’s split en banc decision that 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).

  • April 01, 2022

    Split South Dakota Supreme Court Affirms Finding Of Financial Abuse By Caretaker

    PIERRE, S.D. — A split South Dakota Supreme Court on March 23 affirmed a circuit court’s determination that a man diagnosed with vascular dementia was a vulnerable adult who was financially exploited by his caretaker, finding that the circuit court did not abuse its discretion when relying on medical evidence submitted by the man’s guardian and conservator to find him not competent to testify at a hearing for a protection order against his caretaker.

  • March 31, 2022

    Panel: Evidence Sufficient To Support Convictions In Health Care Fraud Suit

    NEW ORLEANS — A federal jury did not err in convicting two men for their roles in a health care fraud scheme to defraud Medicare by certifying patients for home health and hospice services regardless of whether the patients were eligible for such services because evidence provided by government prosecutors was overwhelmingly sufficient to support the guilty verdicts entered against both men, a Fifth Circuit U.S. Court of Appeals panel ruled March 24 in affirming.

  • March 31, 2022

    Judge: Government Claims Sufficient In Qui Tam Suit Over Alleged Hospice Fraud

    NASHVILLE, Tenn. — A federal judge in Tennessee on March 21 rejected a request by hospice services providers to narrow claims filed by the United States and the state of Tennessee based on time period and/or location in a consolidated qui tam lawsuit alleging that the defendants violated provisions of the False Claims Act (FCA) and the Tennessee Medicaid False Claims Act (TMFCA) by fraudulently certifying patients for unnecessary hospice services, ruling that the defendants have failed to show that such relief is warranted.

  • March 30, 2022

    Panel Affirms Grandmother Visitation, Says Trial Court Applied Correct Standards

    TOPEKA, Kan. — A Kansas appellate court on March 18 affirmed a district court’s order granting a paternal grandmother visitation with her grandchildren following the death of her son, finding that the lower court did not err in granting visitation because there was “substantial evidence in the record” supporting the court’s determination that the mother’s plan, which “essentially called for no visitation,” was “unreasonable.”

  • March 30, 2022

    Jury Awards $12.35 Million In Negligence Suit Against Florida Nursing Facility

    ORLANDO, Fla. — A Florida jury on March 11 awarded $12,353,604 in total damages to a former resident of a Florida skilled nursing facility who filed claims for negligence and violations of her rights as a nursing home resident against the facility, alleging that the facility’s failure to provide adequate care led to the development of pressure ulcers that resulted in hospitalization.

  • March 30, 2022

    Ohio Appeals Court: Peer-Review Privilege Protects Nursing Facility Reports

    DAYTON, Ohio — Reversing a trial court’s denial of a nursing facility’s motion for a protective order in a negligence and wrongful death lawsuit, an Ohio appellate panel on March 25 concluded that some of the documents withheld by the facility were protected by the peer-review privilege and the Health Insurance Portability and Accountability Act of 1996 (HIPAA), sustaining the appellants’ assignments of error and remanding the case.

  • March 30, 2022

    Panel Reverses Conviction For Financial Exploitation Of Incapacitated Adult

    RICHMOND, Va. — A Virginia appellate court on March 15 reversed and dismissed a conviction for financial exploitation of a mentally incapacitated adult related to a daughter’s use of her elderly mother’s Social Security money, finding that evidence at trial establishing the mother’s incapacity related to her health care decisions “could not, by itself, justify the trial court in finding beyond a reasonable doubt that” the mother lacked mental capacity related to financial decisions.

  • March 29, 2022

    Care Home Attorneys Ask Judge Not To Sanction Them In COVID Death Suit

    RIVERSIDE, Calif. — In response to a California federal judge’s order to show cause as to why sanctions should not be imposed against a nursing home’s attorneys for failure to cite “adverse controlling authority” in their request to stay an order remanding a COVID-19 death suit against the nursing home to state court, the attorneys in a March 25 brief asserting that they were not acting in bad faith in failing to cite the Ninth Circuit U.S. Court of Appeals’ February ruling in  Saldana v. Glenhaven Healthcare LLC.

  • March 25, 2022

    West Virginia High Court Says Care Home’s Arbitration Agreement Is Invalid

    CHARLESTON, W.Va. — An arbitration provision in nursing home residency agreements was invalid because it failed to follow the American Health Lawyers Association (AHLA) rules it designated in the arbitration provision, the West Virginia Supreme Court of Appeals held March 22, affirming a circuit court decision denying the nursing home management company’s motion to compel arbitration in a putative class action filed against it by residents’ representatives alleging violations of the West Virginia Consumer Credit and Protection Act (WVCCPA) related to assessing residents’ needs.

  • March 24, 2022

    Nursing Home Seeks Rehearing Of 9th Circuit Ruling In COVID Nursing Home Death Suit

    PASADENA, Calif. — The Ninth Circuit U.S. Court of Appeals’ Feb. 22 decision affirming that a wrongful death suit filed by the family of a man who died in a nursing home after contracting COVID-19 belongs in California state court conflicts with the U.S. Supreme Court’s ruling in Aetna Health Inc. v. Davila, the nursing home and its owners and operator say in a March 22 petition for panel rehearing or rehearing en banc.

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