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Mealey's Elder Law

May 23, 2023
Denial Of Care Home’s Motion To Compel Arbitration Affirmed Absent POA Signature

FRANKFORT, Ky. — A Kentucky appeals court affirmed a lower court order denying a nursing home’s motion to compel arbitration in an executor’s negligence and wrongful death suit filed against it on behalf of a deceased former resident, finding that the home failed to establish the arbitration agreement’s validity because it was signed by the decedent’s spouse in her capacity as his wife rather than power of attorney (POA) and was not a condition for admission.
May 22, 2023
Illinois Appeals Court Remands Reverse Mortgage Dispute To Allow Competency Defense

CHICAGO — An Illinois appeals court found that a lower court erred in striking the affirmative defense of a son who claims that his mother lacked the mental capacity to agree to a reverse mortgage and vacated the summary judgment award granted to the mortgage company and judgment of foreclosure and sale.
May 12, 2023
Declaratory Relief Claims Tossed In Class Suit Alleging Understaffed Care Homes

NASHVILLE, Tenn. — A Tennessee federal judge granted nursing home facilities’ motion to dismiss claims for declaratory and injunctive relief in a consolidated putative class action suit against them claiming that understaffing resulted in residents receiving inadequate services, agreeing with the nursing home that because the named plaintiffs are deceased or no longer facility residents, those claims should be dismissed.
May 11, 2023
Rejection Of Day Late Arbitration Demand In Age Bias Dispute Upheld By 11th Circuit

ATLANTA — The 11th Circuit U.S. Court of Appeals affirmed a trial court’s denial of a terminated worker’s petition to vacate an arbitration award in an age bias dispute, finding that the worker failed to show that an arbitrator erred in concluding that the late demand was de minimis and that the Age Discrimination in Employment Act’s (ADEA) “piggybacking doctrine” did not apply to arbitration.
May 10, 2023
Nonagenarian Conservatorship Remains For Man With Over $40M In Assets, Panel Says

SAN BERNARDINO, Calif. — A California appellate court affirmed a lower court’s dismissal of a spouse’s challenge to the conservatorship for her 97-year-old husband, finding that the lower court correctly ruled that nonappointed counsel are disqualified from representing the spouse without her husband’s consent and that because he is incapacitated, he cannot provide that consent.
May 10, 2023
9th Circuit: Workers Failed To Show Early Retirement Program Was Adverse Action

SAN FRANCISCO — Flight attendants who were offered an early retirement option in the wake of the coronavirus pandemic and flight cancellations failed to show in their age bias putative class complaint that the retirement offering by American Airlines Inc. was an adverse employment action, a Ninth Circuit U.S. Court of Appeals panel ruled, affirming a trial court’s dismissal of the case.
May 09, 2023
Iowa High Court Affirms Order Denying Spousal Transfer Of Decedent’s ERISA Plan

DES MOINES, Iowa — The Iowa Supreme Court affirmed a lower court order denying a surviving spouse’s request to transfer her deceased husband’s 401(k) profit-sharing plan governed by the Employee Retirement Income Security Act, finding that the lower court correctly held that without a divorce or separate maintenance proceeding, it lacked the statutory authority to make the transfer.
May 08, 2023
Split Mass. High Court Reverses Dismissal In Veterans Home COVID-19 Death Case

BOSTON — A split Massachusetts Supreme Judicial Court reversed a lower a court’s dismissal of criminal charges against a former superintendent and medical director of a veterans home for their roles in commingling COVID-19-symptomatic residents with asymptomatic residents, leading to 76 deaths, finding that the defendants’ failure to comply with infection control practices constituted wanton or reckless behavior.
May 08, 2023
Panel Refuses To Disturb Finding That Professional Services Exclusion Bars Coverage

PASADENA, Calif. — The Ninth Circuit U.S. Court of Appeals on May 5 refused to disturb its holding that a commercial general liability insurance policy’s professional services exclusion bars coverage for the insured’s liability in an underlying lawsuit alleging negligence, loss of consortium, financial elder abuse and fraud and that the insurer is entitled to the reimbursement of the $2 million it paid to settle the underlying lawsuit.
May 05, 2023
Judge Rules On Executor’s Dismissal Motion In Care Home Suit To Compel Arbitration

OWENSBORO, Ky. — A Kentucky federal judge found that because a son who alleges that his mother received deficient care in a nursing home was a party to an arbitration agreement, the son can arbitrate his wrongful death claim against the nursing home in his separate state court suit, but the judge dismissed survivor claims brought by the son because he lacked the power to arbitrate on his mother’s behalf.
May 04, 2023
Class Settlement Of Suit Against SAG-AFTRA Health Fund Gets Preliminary OK

LOS ANGELES — Plaintiffs who sued the SAG-AFTRA Health Fund and related parties in California federal court under the Employee Retirement Income Security Act over benefit cuts and a merger were granted preliminary approval on May 3 of a class settlement involving a $15 million fund, additional payments totaling up to $5.6 million and nonmonetary relief.
May 04, 2023
Panel Rules On Agency Issues In Estate’s Negligence Suit Against Hospital, Doctor

ELGIN, Ill. — An Illinois appellate court granted in part and reversed in part and remanded an estate administrator’s appeal of a trial court’s summary judgment for a hospital in a negligence and wrongful death suit against the hospital and a treating physician after the administrator’s husband died there, finding that the trial court erred by granting summary judgment regarding the estate administrator’s claims but did not err on claims made under the Illinois Family Expense Act because the administrator had notice of the doctor’s independent contractor status.
May 03, 2023
Government Wins Summary Judgment In Pension Dispute Involving The MPRA

WASHINGTON, D.C. — Ruling that the physical-takings test does not apply and that the plaintiffs “have not demonstrated that a regulatory taking occurred,” a U.S. Federal Claims Court judge granted summary judgment for the government in a suit seeking compensation for cuts to the plaintiffs’ vested pension benefits that plan trustees made under the Multiemployer Pension Reform Act of 2014 (MPRA).
May 02, 2023
Relator’s Motion To Depose Actuaries Granted In FCA Suit Alleging False CMS Bids

LOUISVILLE, Ky. — A Kentucky federal magistrate judge granted a relator’s motion to depose actuaries in a False Claims Act (FCA) suit alleging that Humana Inc. knowingly submitted false bids to the Centers for Medicare and Medicaid Services (CMS), resulting in overpayment to Humana, finding that though the additional depositions “may prejudice Humana by diverting time and resources from trial preparation, the stakes in this litigation are substantial and the potential benefit of the discovery outweighs Humana’s burden.”
May 02, 2023
Michigan Appeals Court Reverses Exclusion Of Expert, Summary Judgment Grant

DETROIT — A Michigan appeals court held that a “trial court appeared more concerned with conducting a miniature trial” than adequately determining the admissibility of a causation expert retained by a woman who sued a nursing home for medical malpractice and reversed a grant of summary judgment and remanded the case.
May 02, 2023
Order Compelling Arbitration Affirmed In Wrongful Death Suit Against Nursing Home

TRENTON, N.J. — A New Jersey appellate court affirmed a lower court order compelling arbitration in an executor’s wrongful death suit against a nursing home on behalf of a man who died after a monthlong stay there, finding that despite state law voiding such agreements “as against public policy,” U.S. Supreme Court precedent favoring arbitration requires enforcement of the agreement.
May 01, 2023
Michigan Panel Remands For Court To Award Insurer All Requested Attorney Fees

TROY, Mich. — A Michigan appeals panel affirmed a lower court’s ruling that a professional rehabilitation facility insured failed to provide notice of an underlying wrongful death lawsuit “as soon as practicable” to trigger coverage under a professional liability insurance policy but reversed the lower court’s order awarding the insurer only part of its requested attorney fees and remanded for the lower court to award the insurer $26,581.60 in attorney fees.
May 01, 2023
11th Circuit Affirms Medicare Claim Denial For Failing 3-Day Stay Requirement

ATLANTA — The 11th Circuit U.S. Court of Appeals affirmed a district court order granting summary judgment to the secretary of Health and Human Services (HHS) in a man’s claim seeking Medicare Part A coverage on behalf of his now-deceased mother, finding that the man failed to show that the secretary’s denial of his mother’s claim was arbitrary or capricious or unsupported by evidence.
April 27, 2023
Miss. High Court Says Daughter Not ‘Surrogate’ In Nursing Home Arbitration Row

JACKSON, Miss. — The Mississippi Supreme Court affirmed and remanded a lower court order denying a nursing home’s motion to compel arbitration in a negligence and wrongful death suit brought against it by the daughter of a former resident, finding that the nursing home failed to show that the decedent lacked capacity, which is a requirement for a surrogate to make health care decisions on behalf of the person they are representing.
April 27, 2023
Judge Dismisses FCA Claims Against Hospital In Medicare Fraud COVID Testing Suit

ATHENS, Ga. — A Georgia federal judge on April 26 dismissed relators’ qui tam suit against a hospital and pulmonary medicine practice accused of violating the federal False Claims Act (FCA) and Georgia False Medicaid Claims Act (GFMCA) for seeking payment from Medicare and Medicaid related to purported fraud in repeating COVID testing to create negative results, finding that the relators “failed to state a viable claim for worthless services.”
April 26, 2023
U.S. Supreme Court Hears Arguments On Property Taking For Debt

WASHINGTON, D.C. — In oral arguments before the U.S. Supreme Court on April 26, the attorney representing an elderly woman who brought a putative class complaint after her condominium was seized by a Minnesota county and sold for $40,000 to satisfy a $15,000 tax debt argued that the government “has a constitutional duty to return or pay for the excess.”
April 26, 2023
Class Discovery Request Denied In Care Home Understaffing And Inadequate Care Suit

NASHVILLE, Tenn. — A Tennessee federal magistrate judge denied a motion for specified discovery items filed by estate representatives in consolidated putative class actions against nursing home facilities, alleging that understaffing resulted in residents receiving inadequate services, finding that the discovery requests are not sufficiently related to questions regarding class certification.
April 26, 2023
Panel Affirms Finding That Deed Of Trust Claim Against Estate Is Unenforceable

SEATTLE — A Washington appeals court affirmed a lower court’s order determining that a creditor’s claim against an estate is unenforceable, finding that the lower court correctly concluded, among other things, that it had subject matter jurisdiction, that the claim to a note secured by a deed was time-barred and that the issue regarding an attorney fee award to the estate is moot.
April 25, 2023
Illinois Judge: Unclear Whether Retirement Facilities Incurred Covered Crisis Event

CHICAGO — An Illinois judge granted insurers’ motion to dismiss insureds’ claims seeking a declaratory judgment as to Interruption by Communicable Disease, Contaminated Food/Communicable Disease and Preservation of Property (PP) coverage for their losses incurred by their continuing care retirement facilities following the coronavirus outbreak but refused to dismiss the insureds’ declaratory judgment and breach of contract claims as to the Crisis Management coverage and their breach of contract claim as to the Contaminated Food/Communicable Disease coverage under the primary insurance policies.
April 20, 2023
Judge Dismisses 2 Motions To Vacate Judgment In Nursing Home Negligence Suit

LEXINGTON, Ky. — A Kentucky federal judge dismissed a son’s motion to vacate a judgment dismissing with prejudice most claims in his negligence suit against the nursing home where his father died, finding that there is no statutory change in controlling law to allow the son’s post-judgment motion.