Articles Posted in Long-Term Care Facilities

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A Kentucky appellate court has held that a nursing home arbitration agreement without specific language allowing an attorney-in-fact to waive a resident’s right to a jury trial was enforceable because of a recent U.S. Supreme Court decision.

In reversing the trial court’s denial of the defendant’s motion to compel arbitration, the appeals panel turned to the U.S. Supreme Court case of Kindred Nursing Centers v. Clark, 137 S.Ct. 1421 (2017). In the Kindred Nursing Centers case, the Supreme Court held that the Federal Arbitration Act preempts the state’s “clear statement rule,” which requires a power of attorney to contain an explicit authorization before an attorney-in-fact may waive a principal’s constitutional right to a jury trial. It was held that this case is substantively similar to the Kindred case.

In the underlying lawsuit, Jamie Free was admitted to Regis Woods Care and Rehabilitation Center, a long-term care facility. As she was being admitted, Jamie’s daughter, Reyetta Smith, signed an arbitration agreement in her individual and representative capacity. Smith later sued the facility and others claiming common law and statutory violations. The defendant moved to compel arbitration. The trial judge denied the motion on the basis that the power of attorney did not grant Smith express authority to sign the arbitration agreement on her mother’s behalf.

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On March 1, 2013, Ann Sanders entered into a residence agreement with the defendant, Victory Centre of Melrose Park, SLF Inc., a licensed supportive living facility. Pursuant to an addendum to the residence agreement, the parties agreed that all claims arising out of that agreement, including those of malpractice, could not be brought in a court of law but would be submitted to binding arbitration.

Later, Sanders, who had diabetes, suffered a diabetic shock and lapsed into a diabetic coma. She was then taken to Gottlieb Hospital in Melrose Park, Ill., where she died on May 21, 2013.

Exactly two years after her death, a lawsuit was filed against Victory Centre of Melrose Park, SLF Inc. alleging negligence and seeking damages in connection with her death. In the complaint, the plaintiff alleged that Sanders’s death was due to the negligence of the nursing home. The lawsuit sought compensation for wrongful death under that statute, the Rights of Married Persons Act (commonly known as the Family Expense Act) and the Survival Act.

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Jovan Hinich was 28 years old and suffered from a neurological disorder that limited his mental capacity to that of a toddler. He lived at Next Step in Community Living facility, where his care plan required him to be supervised while eating and for his food to be cut into bite-sized pieces due to his tendency to eat quickly and swallow food without chewing it.

While he was traveling by van to his day program at the Milwaukee Center for Independence (MCFI), he was allowed to access his lunch, including a sandwich. After arriving at MCFI, Hinich collapsed from an obstructed airway. Part of the sandwich was later removed from his throat.

Hinich suffered cardiopulmonary arrest, which resulted in severe brain damage.  He now resides at a facility for those with brain injuries.

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A Louisiana State Appellate Court has held that the automobile policy exclusion in a long-term care and general liability insurance policy applied to claims barred on behalf of a patient who fell from a van’s wheelchair lift.

In this case, Shirley Ann Marzell, who was a patient at the Charlyn Rehabilitation and Nursing Center, was placed in her wheelchair onto the lift platform of the facility’s van. When her assistant moved away from her, Marzell’s weight shifted and the wheelchair rolled off the platform. She struck her head on the pavement. Marzell and her two daughters filed suit against American Safety & Indemnity Co., the insurance company that insured Charlyn Enterprises, the owner of the rehab center.

The insurance company moved for summary judgment maintaining that the automobile exclusion in Charlyn’s insurance policy applied to this lawsuit.  That provision stated in part that the insurance policy did not apply to any claim arising out of the use of an automobile, including acts of loading or unloading. The trial judge granted the motion for summary judgment dismissing the case. An appeal was taken.

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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 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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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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Life Care Centers of America, which operates 200 locations and is based in Tennessee, will pay $143 million to settle a False Claims Act (FCA) litigation in which it was alleged that the corporation had billed Medicare for excess treatment. According to the report of the case, this was a record FCA settlement for the nursing home industry.

The consolidated cases arose because of two whistleblower cases as well as an unjust enrichment lawsuit brought by the Department of Justice (DOJ) against the owner of Life Care. The two former employees will share $29 million in the settlement payout.

This settlement was reported to be the largest in the Justice Department’s history involving a skilled nursing home chain. The size of the settlement was based on Life Care’s ability to pay this amount.  The government, which joined in the FCA cases in 2012, alleged excessive treatment of seniors in order to maximize Medicare reimbursements.

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