The Arizona Supreme Court has reversed a summary judgment dismissing a nursing home abuse case.

Marika Delgado was the personal representative of the estate of her sister, Sandra Shaw. Delgado appealed the trial court’s entry of summary judgment in favor of the defendants who were collectively Manor Care of Tucson.  On appeal, Delgado argued that the court erred in finding that the actions that allegedly caused Shaw’s death were not related to her incapacity as required by Arizona law.

Because the Arizona Supreme Court could not say as a matter of law that the alleged negligence that was a cause of Shaw’s death was unrelated to her incapacity, the state Supreme Court reversed the judgment of the trial judge and sent the case back for further proceedings.

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Meadowbrook Manor Nursing Home invoked the Quality Assurance Act in a case i which Jannie Lindsey, as plenary guardian for 88-year-old Laura Lindsey, alleged that Lindsey was injured by a fall while she was a resident at Meadowbrook’s Naperville Nursing Home.

The Illinois Appellate Court was presented with a case of first impression under the Quality Assurance Act (Long-Term Care Peer Review and Quality Assessment and Assurance Protection Act; 745 ILCS 55/1 et seq.)

In this case, Meadowbrook Manor used a contempt sanction to question the validity of a discovery order that commanded it to handle (1) an internal report it prepared after Lindsey fell and (2) written statements from six witnesses.

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In this case, the Kentucky Supreme Court’s clear-statement rule was held to violate the Federal Arbitration Act by singling out arbitration agreements for disfavored treatment.

The Federal Arbitration Act (the Act) makes arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U.S.C. ¶ 2, establishes an equal-treatment principle:  A court may invalidate an arbitration agreement based on “generally applicable contract defenses,” but not on legal rules that “apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue,” AT&T Mobility, LLC v. Concepcion, 563 U.S. 333, 339.

The Act thus preempts any state rule that discriminates on its face against arbitration or that covertly accomplishes the same objective by disfavoring contracts that have the defining features of arbitration agreements.

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In an Illinois Senate bill sponsored by Sen. Tom Cullerton, D-Villa Park, the law would create a “resident’s representative” for Illinois nursing home residents.  The law would amend the Nursing Home Care Act, changing Section 1-123 (210 ILCS 45/1).

This law — should it be enacted — would allow a nursing home resident to choose someone to support the resident in decision-making, access medical, social, or other personal information of the resident, manage financial matters or receive notifications.

The law would also include the following:  (1) an individual chosen by the resident to act on behalf of the resident in order to support the resident in decision-making; access medical, social or other personal information of the resident; manage financial matters; or receive notifications; (2) a person authorized by state or federal law, including, but not limited to, agents under power of attorney, representative payees, and other fiduciaries, to act on behalf of the resident in order to support the resident in decision-making; access medical, social, or other personal information of the resident; manage financial matters; or receive notifications.  (3) a legal representative, as used in Section 712 of the federal Older Americans Act (42 U.S.C. 3058g); or (4) the court-appointed guardian or conservator of a resident. Nothing in this definition is intended to expand the scope of authority of any resident’s representative beyond that authority specifically authorized by the resident, state or federal law, or a court of competent jurisdiction.

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The family of Lola Norton, deceased  brought a wrongful death action against a number of defendants who were affiliated with a nursing home in which Bernard Norton’s wife, Lola  died.

Bernard and family claimed that negligent treatment caused Lola’s death. The the nursing home defendants filed a motion to dismiss the complaint or, in the alternative, to stay the proceedings and compel arbitration of all claims in accordance with an agreement entered into by Lola at the time she was admitted to the nursing home.

The trial court granted the motion to stay and compel arbitration, and Bernard appealed, contending that, as a wrongful death beneficiary, he could not be bound to Lola’s arbitration agreement. The Court of Appeals reversed the trial court and found that Lola’s beneficiaries were not required to arbitrate their wrongful death claims against the nursing home defendants.

Arbitration clauses commanding arbitration in nursing home abuse and neglect cases have been the bane of many lawyers seeking to protect nursing home residents from abuse and injury. Under the Illinois Nursing Home Care Act, arbitration clauses were considered to undermine the purpose of the act by making it mandatory for residents and their families to abide by a confusing nursing home contract on admission to a nursing home.

The Illinois Nursing Home Care Act was intended to protect residents from exploitation by nursing homes and their parent corporations. It would seem to be against Illinois public policy for residents admitted to Illinois nursing homes to be compelled to sign a contract. In some cases, these contracts contained arbitration clauses that would essentially remove a common law lawsuit as an option should the resident be injured by neglect or abuse by a nursing home and its personnel.

The Centers for Medicare and Medicaid Services (CMS) implemented a new rule that prohibited federal funds for nursing homes that enter into binding arbitration agreements with residents. However, in a U.S. District Court in the Northern District of Mississippi, an order was entered that found that the CMS did not have authority to enact the mandate without statutory authority.

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A federal jury in North Carolina entered its verdict in favor of the families of three nursing home residents who died at Blue Ridge Health Care Center.  The lawsuit filed for the wrongful deaths claimed these deaths were caused by the callous neglect of these and other nursing residents.

The jury awarded both compensatory and punitive damages in the case. The suit alleged that the nursing home’s medical staff chose not to properly monitor the patients, allowing them to remove their own breathing tubes without proper safeguards in place. The families alleged in these wrongful death lawsuits that the patients all required ventilator or tracheotomy tubes, which the residents were able to  remove on their own.  There was claimed to be little or no medical staff intervention to prevent residents from removing their ventilators or tracheotomy tubes.

The jury entered the verdict in favor of the families of the nursing residents — Baird, Jones and Kee — compensatory damages of $50,000, $300,000 and $300,000, respectively, and punitive damages to each family in the amount of about $1.5 million.

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Julio Reyes Concepcion, a 73-year-old nursing home resident of the Royal Suites Health Care & Rehabilitation facility, had a number of different medical and health problems after he suffered a stroke.  He required tube feeding at the nursing home. After a feeding, a nursing staff worker noted that he had vomited.  The nursing home staff did not notify his treating physician.  About five hours later, he was transferred to a hospital suffering from respiratory distress and aspiration pneumonia. Unfortunately, Reyes Concepcion died two days later.

His family sued the nursing home, claiming that its nursing staff negligently chose not to elevate his bed 45 degrees before or after the feeding and chose not to timely respond to signs of respiratory distress.

The jury in this case concluded that the nursing home had been negligent but determined there had been no pain and suffering. The jury’s verdict was for $250,000, which the trial judge later vacated for “excessiveness.”  The case is being retried on damages only.

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A state appellate court had held that a nursing home’s alleged failure to prevent a nursing home resident’s injuries by raising bedrails was a triable issue of fact. The case centered on whether this choice — made by the nursing home  — was a departure from the standard of care.

Rosalia Petralia, 88, suffered from dementia. She lived at the Glengariff Health Care Center. She was a fall risk and formal fall precautions were noted in her chart. She fell out of bed and suffered serious injuries.  Later, she  sued the nursing home, and her son was substituted as the plaintiff when his mother passed away.

The lawsuit maintained that Glengariff Health Care Center was negligent and also alleged medical malpractice for the nursing home’s choosing not to have Petralia’s bedrails raised before her fall. The nursing home moved for summary judgment. The trial court granted the motion, holding that the nursing home had shown it had not departed from the acceptable nursing and professional practice standard.

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Doris Green was 79 years old when she was discharged to HealthSouth Rehabilitation Hospital of Gadsden for a two-week stay following her hospitalization for gastroenteritis. About a week after her admission, a nurse discovered that she was in an unresponsive mental state; the physician ordered that she be transferred to a nearby hospital.

At the hospital, she underwent a CT scan of her brain and it was negative. She was then rehydrated and returned to HealthSouth.

Three days later, Green became unresponsive again with an oxygen saturation level of just 70%.  She was returned to the hospital in a coma. Doctors believe she had been given opiates. The doctors ordered two urinalyses, which were positive for opiates.  The hospital staff administered Narcan and Green responded favorably over the next few days. Although her condition stabilized, she did suffer brain damage resulting from lack of oxygen or hypoxia to the brain. She died several months later.  She was survived by her adult daughter.

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