Mealey's Elder Law
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March 16, 2021
California Sues Brookdale Senior Living, Says Chain Misrepresents Quality Of Care
BAKERSFIELD, Calif. — The nation’s largest owner and operator of senior living facilities “has systematically violated numerous laws that protect senior and disabled Californians” by “falsely advertising” the quality of care it provides “to lure prospective residents” and by failing to properly notify and prepare patients and families for transfers and discharges, in violation of the state unfair competition law (UCL) and false advertising law (FAL), the California attorney general and other prosecutors in the state allege in a March 16 complaint.
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March 16, 2021
6th Circuit: Court Lacked Summary Judgment, Attorney Fees Authority In ERISA Suit
CINCINNATI — A trial court that entered, following an arbitrator’s award, summary judgment on Employee Retirement Income Security Act claims and awarded attorney fees to retirees and a labor union representing them in a dispute over termination of their health care benefits lacked the authority to do so, a Sixth Circuit U.S. Court of Appeals ruled March 11, reversing the District Court’s judgment.
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March 15, 2021
Assisted Living Chain Wins, Loses Judgment On UCL Claims; Class Certification Denied
SANTA ANA, Calif. — Following the denial of motions for class certification and for leave to amend an action alleging that the owners of a chain of assisted living facilities failed to sufficiently staff the facilities, a California federal judge on Feb. 10 granted the defendants judgment on the pleadings on the plaintiffs’ claim for equitable restitution under the California unfair competition law (UCL) but denied it as to their claims for injunctive relief under the UCL and the California Consumer Legal Remedies Act (CLRA).
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March 15, 2021
Nursing Home Arbitration Agreement Was Unconscionable, Pennsylvania Court Affirms
PITTSBURGH — A trial court properly concluded that an arbitration agreement a decedent signed was unconscionable, the Pennsylvania Superior Court ruled March 5 in a nonprecedential decision affirming an order declining to compel arbitration in a nursing home negligence and wrongful death suit.
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March 12, 2021
Appellees Tell 3rd Circuit Rehab Facility COVID Death Cases Were Properly Remanded
PHILADELPHIA — A federal judge in New Jersey properly found that the operators of two rehabilitation facilities where at least 50 patients have died from COVID-19 were not acting at the direction of a federal agency or operator, and the operators’ arguments to the contrary are “overreaching,” the plaintiffs in two putative negligence and wrongful death actions tell the Third Circuit U.S. Court of Appeals in a March 10 appellee brief urging affirmance of the lower court’s order remanding their cases to state court.
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March 12, 2021
Split New York Panel: Court Board Has ‘Broad Authority’ To Terminate Justices
NEW YORK — A divided New York appellate panel on March 9 ruled that a state Supreme Court erred when it annulled a decision by the Administrative Board of the New York State Unified Court System to terminate the services of dozens of justices over the age of 70 due to budgetary constraints from the coronavirus, despite claims by the justices that the decisions constitute age discrimination and violation of the state constitution.
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March 10, 2021
Maryland Appeals Court Affirms Ruling For Ex-Wife In Promissory Note Dispute
ANNAPOLIS, Md. — A trial court correctly determined that a fraudulent and forged power of attorney did not constitute extrinsic fraud in a confessed judgment action brought by a divorced couple’s daughter on behalf of her mother, the Maryland Court of Special Appeals concluded Feb. 26. Therefore, the lower court did not abuse its discretion in refusing to vacate its judgment against the ex-husband in a dispute over a $75,000 promissory note he executed during the divorce proceedings.
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March 10, 2021
2nd Circuit: Dual Status Technician’s Pension Subject To Social Security Reduction
NEW YORK — The Second Circuit U.S. Court of Appeals on March 8 held that a retired dual status technician’s pension does not fall within the uniformed service exception to the Social Security Act’s windfall elimination provision (WEP), reversing a lower court’s ruling in favor of the retiree.
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March 10, 2021
11th Circuit Upholds Summary Judgment For Law School In Age Bias Suit
ATLANTA — A former law school professor who sued for age discrimination after she was not reappointed failed to show that the school’s proffered reason of poor performance and complaints by students was pretextual, an 11th Circuit U.S. Court of Appeals panel ruled in a Feb. 25 per curiam opinion.
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March 10, 2021
1st Circuit Largely Reverses Age Bias Ruling, Remands For New Damages Trial
BOSTON — A First Circuit U.S. Court of Appeals panel on March 3 largely reversed a trial court’s judgment for an employee in an age bias and retaliation lawsuit following a more than $1 million jury verdict for the worker and remanded for a new trial only on damages stemming from a letter by the employer threatening to fire her if she didn’t return from leave, rejecting the employer’s claim that that was not an adverse employment action.
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March 10, 2021
Georgia Long-Term-Care Facility Sued For Negligence, Wrongful Death
ATLANTA — The son of a deceased long-term care facility resident on March 1 sued the facility, its owners and operators and a physician and his employer in a Georgia court for negligence, wrongful death and violations of state law, alleging that failures including not restarting anticoagulant medication therapy “proximately caused or proximately contributed” to the pulmonary embolism that resulted in the woman’s death.
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March 10, 2021
Judge Remands Nursing Home COVID-19 Death Suit, Finds PREP Act Doesn’t Apply
TOPEKA, Kan. — A federal judge in Kansas on Feb. 26 granted a plaintiff’s motion to remand a nursing home COVID-19 wrongful death case to state court, finding that there is no federal jurisdiction because the claims do not fall under the Public Readiness and Emergency Preparedness (PREP) Act as the defendants had claimed.
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March 09, 2021
California Appeals Court Affirms $1.5 Million Judgment In Financial Elder Abuse Suit
SAN FRANCISCO — A California appeals court on Feb. 18 affirmed a $1.5 million judgment in a woman’s action against her brother alleging financial elder abuse of their father before he died and the dismissal of the brother’s libel suit against his sister for writing an email stating that he had committed elder abuse.
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March 05, 2021
Alabama Supreme Court Finds Fact Issue In Will Suit, Reverses Summary Judgment
MONTGOMERY, Ala. — The Alabama Supreme Court on Feb. 26 reversed and remanded a probate court’s grant of summary judgment in a will contest, finding that the hospitalized testator’s erroneous statement in the will that he had no children and the possibility that medication might have influenced his mental state created a genuine issue of material fact regarding his testamentary capacity.
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March 05, 2021
Federal Magistrate Recommends Denying Mandamus In Social Security Benefits Case
SYRACUSE, N.Y. — A New York federal magistrate judge on Feb. 22 recommended denying a retired widow’s petition for a writ of mandamus to compel the Social Security Administration (SSA) to produce a benefits increase that has been delayed by errors on grounds that the court lacks mandamus jurisdiction because no violation of nondiscretionary duty was identified.
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March 05, 2021
Rhode Island High Court: Partition Action Continues After Death Of Joint Tenant
PROVIDENCE, R.I. — Section 34-15-12 of the Rhode Island General Laws “abrogates the common law right of survivorship in a joint tenancy when an action for partition is pending,” the Rhode Island Supreme Court ruled Feb. 25, addressing what it termed an issue of first impression and vacating a lower court ruling dismissing a deceased woman’s petition to partition a jointly owned property.
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March 05, 2021
Medicare Beneficiaries Urge 2nd Circuit To Affirm Hospital Stay Appeal Ruling
NEW YORK — Medicare beneficiaries placed on observation status after being admitted to the hospital as inpatients urge the Second Circuit U.S. Court of Appeals in a March 3 brief to affirm a lower court’s ruling ordering the secretary of Health and Human Services (HHS) to create a procedure that will permit them to challenge the decisions to change their status, rejecting the secretary’s arguments that they lack standing and that the lower court erred in concluding that their due process rights were violated and improperly allowed the case to proceed as a class action.
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March 05, 2021
New Jersey Appellate Court Affirms $349,000 Award For Delayed Blood Sugar Treatment
TRENTON, N.J. — A trial court did not abuse its discretion in barring a defense expert’s report due to the untimely service of his report and allowing a plaintiff’s expert to testify on a state law concerning a long-term care resident’s rights, a New Jersey appellate court held Feb. 17, affirming a $349,000 award to the resident in her suit over the delay in treating her rising blood sugar level.
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March 04, 2021
Arizona Appeals Court Upholds Summary Judgment In Probate DNA Case
TUCSON, Ariz. — An Arizona appellate court on Feb. 11 affirmed a trial court’s denial of motions for DNA testing and its grant of summary judgment in a probate suit, ruling that the appellant failed to establish that the motions complied with proper procedures and that the lack of DNA testing after a 60-day deadline left her efforts “insufficient to create a material issue of fact” related to the appellee’s paternity.
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March 04, 2021
Mississippi Federal Judge Dismisses Medicare Denial Suit On Standing
OXFORD, Miss. — A Mississippi federal judge on Feb. 22 granted the Health and Human Services secretary’s motion to dismiss a Medicare denial of coverage suit, finding that because the plaintiff seeking judicial review didn’t have to pay noncovered charges and suffered no injury, he did not meet the standing requirement of Article III of the U.S. Constitution, which limits federal court jurisdiction to live “cases” or “controversies.”