Health law, arugula with roasted tomatoes and garlic over penne pasta

Medicaid Services: SUPREME COURT TO DECIDE IF CALIFORNIA CAN CUT MEDICAID PAYMENTS, Maxwell-Jolly v. Pharmacists Ass'n, 13 No. 15 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home January 28, 2011

The U.S. Supreme Court has agreed to review a California health official's claims that the state should be allowed to reduce Medicaid payments to physicians, hospitals and pharmacies because of its current budget crisis. The high court granted the state's petition for review of a 9th U.S. Circuit Court of Appeals ruling that a state-approved reduction in Medicaid payments is preempted by federal Medicaid law.

Abuse & Neglect: FLORIDA SUIT SAYS HOME FAILED TO PREVENT RESIDENT'S FALLS, Cook v. Senior Care Cedar Hills, 13 No. 15 Westlaw Journal Nursing Home 2, Westlaw Journal Nursing Home January 28, 2011

An elderly dementia sufferer in Florida suffered numerous falls, infections and insect infestations during her stay at a Jacksonville nursing home, her daughter alleges in a state court lawsuit. Martha Y. Cook claims that Cedar Hills Healthcare Center violated her mother's rights as a nursing home resident when it failed to monitor her, prevent falls, and protect her from infestations of scabies mites and bed bugs.  

Billing Fraud: VIRGINIA FEDERAL JUDGE WON'T DISMISS MEDICARE FRAUD DEFENDANTS, United States v. Americare In Home Nursing, 13 No. 15 Westlaw Journal Nursing Home 3, Westlaw Journal Nursing Home January 28, 2011

A Virginia federal judge has denied a motion by Visiting Nurse Service Network and its executive director to dismiss a suit alleging the company violated the federal Anti-Kickback Statute and False Claims Act by running an illegal patient referral scheme. U.S. District Judge James C. Cacheris of the Eastern District of Virginia also denied a motion to dismiss by a defendant home health care company allegedly involved in the scheme but granted dismissals to a third company and a home health firm.

Billing Fraud: WHISTLE-BLOWER SUIT AGAINST KANSAS HOSPICE PROVIDER SURVIVES, United States v. Hospice Care of Kansas, 13 No. 15 Westlaw Journal Nursing Home 4, Westlaw Journal Nursing Home January 28, 2011

A Kansas federal judge has declined to dismiss a whistle-blower lawsuit alleging Hospice Care of Kansas and parent Voyager Hospicecare instructed staff members to unlawfully document patients' conditions to make them appear eligible to receive Medicare benefits. Judge Carlos Murguia of the U.S. District Court for the District of Kansas rejected the defendant companies' argument that plaintiff Beverly Landis failed to plead her fraud claims with the particularity required by Federal Rule of Civil Procedure.

Coercion: LOUISIANA APPEALS PANEL REJECTS DECEASED MOTHER'S COERCION CLAIMS, Petrie v. Michetti, 13 No. 15 Westlaw Journal Nursing Home 5, Westlaw Journal Nursing Home January 28, 2011

A Louisiana appeals court has rejected the claims of a now-deceased dementia sufferer who said her daughter coerced her into donating property by threatening to put her in a nursing home. Maxine Rearick failed to present clear and convincing evidence that she donated property to her daughter under threat of harm and without real volition, the Court of Appeal's 5th Circuit found.The three-judge panel upheld a trial court's denial of Rearick's request to nullify or revoke the donation.

Employment: SUNRISE FACILITY FIRED WORKER FOR REPORTING NEGLECT, SUIT SAYS, Tobritzhofer v. Sunrise Senior Living, 13 No. 15 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home January 28, 2011

Management at a Sunrise Senior Living facility in Minnesota fired a staff member for reporting increased incidents of resident neglect and declining levels of care, a federal lawsuit alleges. Kimberly Tobritzhofer claims that her superiors at Sunrise of Roseville repeatedly told her not to report residents' increased occurrences of falling and concerns about skin care to state health officials or other employees. In a complaint for wrongful discharge filed in the U.S. District Court.

Financial Elder Abuse: CALIFORNIA APPEALS COURT FINDS DISABLED WOMAN'S FAMILY VIOLATED TRUST, McQueen v. Drumgoole, 13 No. 15 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home January 28, 2011

A California appeals court has upheld a jury's finding that a mentally retarded woman's uncle, sister and attorney violated a trust by selling the family residence without her knowledge and cutting her out of the proceeds. The trial judge properly allowed jurors to consider Ida McQueen's conversion claim and issued correct jury instructions on the standard for financial elder abuse, the 1st District Court of Appeal said.McQueen, 76, suffers from mild mental retardation and is wheelchair-bound.

Health Care Reform: CHRISTIAN GROUP CHALLENGES HEALTH CARE REFORM BILL IN 6TH CIRCUIT, Thomas More Law Ctr. v. Obama, 13 No. 15 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home January 28, 2011

A Christian legal advocacy group seeking to derail President Obama's health care reform law has taken its case to the 6th U.S. Circuit Court of Appeals. The Thomas More Law Center is challenging U.S. District Judge George Caram Steeh's ruling that the government legally can require uninsured people to purchase coverage.The judge had denied the group's request for an injunction against a provision in the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, that imposes a penalty.

Legislation: WISCONSIN SENATE PASSES LAWSUIT REFORM, PUNITIVE DAMAGES CAP, 13 No. 15 Westlaw Journal Nursing Home 9, Westlaw Journal Nursing Home January 28, 2011

The Wisconsin Senate has approved legislation that imposes greater restrictions on evidence in tort cases against long-term-care facilities and caps punitive damages in all cases at $200,000. The Republican-authored law is part of a five-bill package introduced by incoming Gov. Scott Walker to promote a "business- and job-friendly legal environment," he told the media Jan. 4. However, state Democrats and advocacy groups for the elderly claim the package's lawsuit reform bill shields nursing homes.

Long-Term-Care Insurance: DEMENTIA SUFFERERS SEEK PENALTIES AGAINST LTC INSURER, Barton v. Bankers Life & Cas. Co., 13 No. 15 Westlaw Journal Nursing Home 10, Westlaw Journal Nursing Home January 28, 2011

A Texas couple, both diagnosed with dementia, have sued their long-term-care insurer over its allegedly wrongful denial of their claims and refusal to comply with requests for policy information. Glen and Barbara Barton claim that Bankers Life & Casualty Co. has declined to reimburse them $7,500 in legal expenses despite the insurer's concession that it should have approved their claims for benefits in 2009 and 2010. They seek reimbursement plus thousands in statutory penalties for the insurer.

Medicaid Services: CUTS IN MEDICAID HOME SERVICES WILL HURT THOUSANDS, LOUISIANA RESIDENTS SAY, Pitts v. Greenstein, 13 No. 15 Westlaw Journal Nursing Home 11, Westlaw Journal Nursing Home January 28, 2011

Four low-income Louisiana residents are seeking class-action status in their bid to stop the state from cutting home-care Medicaid services for nearly 11,000 poor people. Plaintiffs Helen Pitts, 78, Kenneth Roman, 47, Denise Hodges, 53, and Ricki Ainey 30, allege the Louisiana Department of Health and Hospitals plans to slash its program offering long-term, personal care services in the face of a $1.6 million budget deficit. The move is discriminatory because it will result in thousands of Medicaid cuts.

Implantable Defibrillators: 2ND TIME AROUND, GUIDANT GETS OK ON $296 MILLION PLEA DEAL, United States v. Guidant LLC, 17 No. 25 Westlaw Journal Medical Devices 1, Westlaw Journal Medical Devices January 31, 2011

A federal judge in Minneapolis has approved a $296 million plea agreement between Guidant LLC and the Justice Department, noting that the pact places the company on probation, an element absent in a previously rejected proposal. Last April U.S. District Judge Donovan W. Frank of the District of Minnesota rejected a virtually identical plea deal over the company's concealment of defects in some of its implantable heart defibrillators, saying it lacked a probation element.

Hydro ThermAblator (Federal Preemption): 5TH CIRCUIT RESTORES PART OF BURN VICTIM'S SUIT AGAINST BOSTON SCIENTIFIC, Hughes v. Boston Scientific Corp., 17 No. 25 Westlaw Journal Medical Devices 2, Westlaw Journal Medical Devices January 31, 2011

A federal appeals court has restored a failure-to-warn claim by a woman who says she was severely burned by a device used to stop uterine bleeding, reversing a judge's finding that the action is federally preempted. Jan Hughes can proceed with her claim that Boston Scientific Corp. failed to properly warn her about the Hydro ThermAblator's burn risks, the 5th U.S. Circuit Court of Appeals said, because she based her allegation on the firm's alleged failure to comply with federal regulations.

Prosthetic Hip: LIMITATIONS STATUTE SNUFFS SUIT OVER FLORIDA WOMAN'S FAILED PROSTHESIS, Chapman v. DePuy Orthopaedics, 17 No. 25 Westlaw Journal Medical Devices 3, Westlaw Journal Medical Devices January 31, 2011

Citing an expired statute of limitations, a federal judge in Tampa, Fla., has granted summary judgment for DePuy Orthopaedics in a suit alleging a woman's hip prosthesis failed because it was negligently designed and manufactured. U.S. District Judge Virginia Covington of the Middle District of Florida found that although the plaintiff lives in the state, her suit is governed by Virginia's two-year limitations period for product liability cases because that is where the disputed device was purchased.

Prosthetic Hip (Discovery): ILLINOIS FEDERAL JUDGE KILLS HIP PLAINTIFF'S 'OVERLY BROAD' DISCOVERY REQUEST, Pankey v. Wright Med. Group, 17 No. 25 Westlaw Journal Medical Devices 4, Westlaw Journal Medical Devices January 31, 2011

A federal judge in Urbana, Ill., has denied as "overly broad" a plaintiff's discovery motion in a suit alleging the premature failure of a hip prosthesis system from Wright Medical Group. Rejecting plaintiff Glenn D. Pankey's motion to compel discovery, U.S. Magistrate Judge David G. Bernthal of the Central District of Illinois sided with the medical device maker. Wright had argued that the request for extensive data on all Profemur hip prosthesis products constituted an unauthorized "fishing expedition.”

Surgical Tool: CALIFORNIA APPEALS COURT BACKS DISMISSAL OF SURGICAL TOOL INJURY SUIT, Courtenay v. U.S. Surgical Corp., 17 No. 25 Westlaw Journal Medical Devices 5, Westlaw Journal Medical Devices January 31, 2011

A California appeals court has affirmed dismissal of a failure-to-warn suit against the maker of a gynecological surgical tool by a woman who says she was injured during a procedure to implant a supportive mesh device. Elisabeth Courtenay turned to the 2nd District Court of Appeal after a trial judge granted summary judgment to Tyco Healthcare Group and U.S. Surgical Corp.Her claims related to the use of the IVS Tunneller during a 2004 abdominal operation.  

Pain Pump: BREG SCORES WINS OHIO PAIN PUMP SUIT, Krumpelbeck v. Breg Inc., 17 No. 25 Westlaw Journal Medical Devices 6, Westlaw Journal Medical Devices January 31, 2011

Breg Inc. had no reason to warn an Ohio woman of possible cartilage damage from the use of one of its pain pumps to inject anesthetics into her shoulder after a 2005 operation, a federal judge in Cincinnati has ruled. U.S. District Judge Timothy S. Black of the Southern District of Ohio granted the company's motion for summary judgment, finding no duty to warn at the time the injection took place in March 2005.

Pain Pump: NEGLIGENCE, LIABILITY CLAIMS GO FORWARD IN SOUTH DAKOTA PAIN-PUMP SUIT, Suhn v. Breg Inc., 17 No. 25 Westlaw Journal Medical Devices 7, Westlaw Journal Medical Devices January 31, 2011

A federal judge in Sioux Falls, S.D., will allow negligence and strict liability claims to proceed in a man's lawsuit alleging his shoulder cartilage was destroyed when a Breg Inc. pain pump was used to infuse anesthesia directly into the joint. U.S. District Judge Karen E. Schreier of the District of South Dakota said Marcus Suhn provided enough data for a jury to find the defendant should have known that injecting medication directly into the shoulder joint might cause irreparable cartilage damage.

Panacryl Sutures: MDL JUDGE SENDS SUTURE SUIT BACK TO MISSOURI STATE COURT, Englemen v. Johnson & Johnson, 17 No. 25 Westlaw Journal Medical Devices 8, Westlaw Journal Medical Devices January 31, 2011

The North Carolina federal judge presiding over the consolidated suits on Johnson & Johnson's failed Panacryl sutures has returned an infection case to Missouri state court, rejecting J&J's claim that a Missouri medical products supplier was fraudulently joined to defeat federal court jurisdiction. U.S. District Judge Terrence W. Boyle of the Eastern District of North Carolina rejected defense arguments that remand should be denied.

Pain Patch: DESIGN, MANUFACTURING DEFECT CLAIMS STAND IN OHIO PAIN-PATCH DEATH SUIT, Miller v. Alza Corp., 17 No. 25 Westlaw Journal Medical Devices 9, Westlaw Journal Medical Devices January 31, 2011

Alza Corp. must face design and manufacturing defect allegations by the survivors of an Ohio man who died when a pain patch he was wearing allegedly leaked a fatal overdose of fentanyl. U.S. District Judge Timothy S. Black of the Southern District of Ohio denied Alza's motion to dismiss the claims, holding that circumstantial evidence surrounding Cornell Phillips' 2006 death created a genuine issue of fact on whether the Alza patch Phillips was using when he died had a leak. 

Lasik Surgery: WOMAN NEEDS CORNEA TRANSPLANT AFTER FAILED LASER SURGERIES, SUIT SAYS, Linegar v. Lobanoff, 17 No. 25 Westlaw Journal Medical Devices 11, Westlaw Journal Medical Devices January 31, 2011

Three failed laser eye surgery procedures in less than one year have left a woman with an irreversibly scarred cornea, according to a lawsuit filed in Minnesota federal court. Layla Linegar says she now needs a cornea transplant in her left eye. Ophthalmologist Mark Lobanoff assured Linegar she was a suitable candidate for Lasik surgery after examining her in December 2008, according to the complaint filed in the U.S. District Court for the District of Minnesota.

 17 No. 25 Westlaw Journal Medical Devices 12, Westlaw Journal Medical Devices January 31, 2011

FDA panel weighs tougher rules for defibrillators The Food and Drug Administration is considering enacting tougher restrictions to force the makers of automatic external defibrillators to submit added data before offering the devices for sale. The FDA, which notes that 300,000 Americans collapse from sudden cardiac arrests annually, says that since 2006, AED makers have issued 68 product recalls, affecting hundreds of thousands devices. The agency says regulatory review is needed.

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