Recent nursing home litigation and potential theories of liability in the oven

NURSING HOMES ARE NOT BOUND BY 'RIGHT TO KNOW' LAW, FLORIDA SUPREME COURT RULES
In Benjamin v. Tandem Healthcare, 11 No. 15 Andrews Nursing Home Litig. Rep. 1, Andrews Nursing Home Litigation Reporter January 16, 2009, the Florida Supreme Court held that nursing homes are not governed by the "right to know" amendment to the Florida Constitution. That amendment [Article X, Section 25 of the Florida Constitution or “Amendment 7”] allows patients access to records relating to medical mistakes by health care providers. The six participating Justices agreed that the definition of "health care facility" in Amendment 7 did not include nursing homes.The Supreme Court relied on a "long_standing distinction" in Florida law between health care providers and nursing homes, governed by different statutes.

MINN. CARE HOME IS SUED OVER RESIDENT'S DEHYDRATION DEATH, Cole v. GGNSC Stillwater Greeley, 11 No. 15 Andrews Nursing Home Litig. Rep. 2, Andrews Nursing Home Litigation Reporter January 16, 2009
A 71_year_old dementia patient died from severe dehydration suffered during a three_week stay at a Minnesota nursing home, according to a federal court lawsuit filed by his son. The staff at the Golden Center Living Greeley facility in Stillwater is alleged to have failed to ensure that Dean Cole received adequate food and liquids during his December 2006 stay, Cole's son Kevin says in the lawsuit. Cole was hospitalized Dec. 29, 2006, after nursing home staff members found him unresponsive.

A WOMAN'S SERIES OF PROBLEMS LINKED TO FALL AT MICH. HOME, Link v. IHS Acquisition, 11 No. 15 Andrews Nursing Home Litig. Rep. 3, Andrews Nursing Home Litigation Reporter January 16, 2009
A Michigan woman alleges in a federal court lawsuit that neglect by a nursing home's staff caused a fall in which she suffered a broken hip, setting off a chain reaction of debilitating health complications. Nancy Link says she fell at the Lynwood Manor Healthcare Center because the staff failed to take the necessary precautions to ensure her safety. She seeks to hold the facility liable for her broken hip and a myriad of health complications that cropped up during her recovery.

OREGON HOME FACES $2 MILLION SUIT OVER SEX ASSAULT BY RESIDENT, Fellows v. Healthcare at Foster Creek, 11 No. 15 Andrews Nursing Home Litig. Rep. 4, Andrews Nursing Home Litigation Reporter January 16, 2009
A Portland, Ore., nursing home has been hit with a $2 million lawsuit alleging it failed to take adequate steps to prevent the sexual assault of a 61_year_old dementia patient by another resident. Staff members at the Healthcare at Foster Creek facility found the alleged victim naked from the waist down in the room of fellow resident Marko Chandler March 31, 2008, according to the complaint. However, the employees did not document or report the incident to authorities or take any action to prevent it.

MASS. NURSES LOSE BID TO FORCE DEATH SUIT INTO ARBITRATION, Constantino v. Frechette, 11 No. 15 Andrews Nursing Home Litig. Rep. 5, Andrews Nursing Home Litigation Reporter January 16, 2009
A group of nurses sued for wrongful death in connection with the care given to a Massachusetts nursing home resident cannot enforce an arbitration agreement between the facility and the resident, a state appellate court has ruled. The court said the agreement expressly limited its reach to disputes between the patient and the nursing home and did not cover individual claims against the facility's employees. This would seem to be an attempt at an end run around the express language of agreements to arbitrate liability issues.

Criminal Conduct: VETERANS HOME EXEC PLEADS NOT GUILTY TO CLEAN_AIR LAW RAP, 11 No. 15 Andrews Nursing Home Litig. Rep. 7, Andrews Nursing Home Litigation Reporter January 16, 2009
In an interesting lawsuit brought under the Clean Air Act, the director of a state_run nursing facility for veterans in Massachusetts has pleaded not guilty to charges that he ordered the illegal removal of a wall containing asbestos insulation without the proper cleanup procedures. Paul Morin, 56, of Chicopee, Mass., the superintendent of the Soldiers' Home in Holyoke, endangered the facility's employees and violated the state's Clean Air Act, Mass. Gen. Laws ch. 111, 142A, Attorney General Martha Coakley said in a Jan. 8 statement.

GOVERNMENT CAN RE_DEPOSE WITNESS HEADED FOR IRAQ IN VET SUICIDE CASE, Lucey v. Nicholson, 11 No. 15 Andrews Nursing Home Litig. Rep. 8, Andrews Nursing Home Litigation Reporter January 16, 2009
A Massachusetts federal judge has granted the U.S. government's motion to re_ depose a Department of Veterans Affairs social worker who is scheduled to deploy to Iraq and may not be available to testify at the May 2009 trial involving an Iraq War veteran's suicide. U.S. Magistrate Judge Kenneth P. Neiman granted a second deposition of Jaime Perez, a key plaintiffs' witness in the malpractice and wrongful_death suit brought by the parents of Jeffrey Michael Lucey.

SUIT SOUNDS IN MED_MAL, NOT SIMPLE NEGLIGENCE, N.J. COURT SAYS, Davis v. St. Barnabas Med. Ctr., 11 No. 15 Andrews Nursing Home Litig. Rep. 9, Andrews Nursing Home Litigation Reporter January 16, 2009
A New Jersey woman's suit was rightfully dismissed for failure to comply with the state's affidavit_of_merit statute since the complaint, as pleaded, sounded in medical malpractice and not simple negligence, a New Jersey appeals court has ruled. Viola Davis sued St. Barnabas Medical Center for injuries she sustained after she was admitted to the hospital in May 2005, was given a number of medications, and later wandered out of her room in a "drug_induced state" and fell. This is an interesting case because suits like this have been brought in Florida and some courts have held that those plaintiffs alleged premises liability claims and could, thus, circumvent presuit notice requirements.

DISPUTED CAUSE OF DEATH PRECLUDES ARIZ. HOSPITAL'S DISMISSAL, Lacombe v. Bullhead City Hosp. Corp., 11 No. 15 Andrews Nursing Home Litig. Rep. 12, Andrews Nursing Home Litigation Reporter January 16, 2009
Finding that the evidence before the court was not "so one_sided that one party must prevail as a matter of law," an Arizona federal judge has denied a hospital's motion for summary judgment in a wrongful_death lawsuit. Bullhead City Hospital Corp., the operator of the Western Arizona Regional Medical Center, argued that evidence showed that the death of David Nichols was not the result of an adverse reaction to penicillin, as alleged by his estate, but rather an enlarged heart and subsequent heart condition.

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