Health law appeals, bad faith insurance, medical malpractice and roasted chicken and garlic with sage-butter wild potatoes

Insurance -- Bad faith -- Jurisdiction -- Removal of state court action to federal court -- Remand to state court -- Diversity -- Under 28 U.S.C. section 1446(b), motion to remand bad faith action, which was removed to federal court on the basis of diversity, is granted where insurer's notice of removal was filed more than a year after “commencement of the action” -- Argument that action did not commence until plaintiffs amended complaint to add bad faith claim and underlying judgment on initial uninsured motorist contract claim became final, is rejected -- Under law of Florida, where action was originally filed, a civil action is commenced on date initial compliant is filed -- Further, plain language of section 1446(b) suggests that “commencement of the action” means the filing of original complaint that sets in motion resolution of all claims that may properly disposed of in the action, and addition of a new claim does not reset one-year limitation period -- Insurer's effort to invoke “separate and independent” controversy doctrine for invoking federal jurisdiction in removal action based purely on diversity necessarily fails where judiciary has been effectively divested of its power to analyze diversity actions under section 1441(c)
THOMAS A. MOULTROP and PATRICIA GUY MOULTROP, plaintiffs, v. GEICO GENERAL INSURANCE COMPANY, defendant. U.S. District Court, Southern District of Florida.

Insurance -- Property -- Conditions precedent -- Examination under oath -- Error to enter summary judgment in favor of Florida Insurance Guaranty Association, as successor in interest for insurer, based on failure of insured and, subsequently, its assignee to submit to examination under oath where FIGA failed to plead and prove prejudice -- Moreover, record indicates that FIGA was not prejudiced
WHISTLER'S PARK, INC., Appellant, v. THE FLORIDA INSURANCE GUARANTY, ETC., Appellee. 5th District.

  Health Care Reform: TAXES LURK BEHIND COURT TEST OF OBAMA HEALTH LAW, 20 No. 1 Westlaw Journal Health Law 3, Westlaw Journal Health Law May 24, 2012 WASHINGTON, May 16 (Reuters) - While Supreme Court watchers focus on the controversial insurance requirement in President Obama's health care law, lesser known is that the court's upcoming ruling will also decide the fate of billions of dollars in new taxes. The 2010 law includes a 3.8 percent boost in taxes on investment income and a 0.9 percent increase in the Medicare payroll tax, both hitting people who earn more than $200,000 a year.

Health Care Reform: U.S. SETS DEADLINE FOR PROPOSALS ON STATE HEALTH CARE EXCHANGES, 20 No. 1 Westlaw Journal Health Law 4, Westlaw Journal Health Law May 24, 2012 WASHINGTON, May 16 (Reuters) - The Obama administration forged ahead with health care reforms, announcing a Nov. 16 deadline for state governments to submit proposals showing how they intend to operate health insurance exchanges in 2014. The Department of Health and Human Services released a detailed blueprint of the legal and operational requirements states must meet in their proposals if they expect to win federal approval to begin operating regulated insurance markets, in whole or in part.

Health Care Reform/Health Exchanges: NEW JERSEY GOVERNOR VETOES HEALTH EXCHANGE BILL, CALLS IT 'PREMATURE', 20 No. 1 Westlaw Journal Health Law 5, Westlaw Journal Health Law May 24, 2012 Rejecting a key provision of President Obama's health care overhaul law, Republican New Jersey Gov. Chris Christie has vetoed a measure that would have set up a health insurance exchange in the state. The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, requires most Americans to carry health insurance by 2014 or face a fine. To help consumers meet this mandate, the law calls for states to establish "health exchanges," an online marketplace that would give small employers

Health Care Reform/Medicaid Service Fees: HHS PROPOSES PAY BOOST FOR MEDICAID DOCTORS, 20 No. 1 Westlaw Journal Health Law 6, Westlaw Journal Health Law May 24, 2012 Primary care physicians could see a pay raise in the next two years for treating Medicaid patients under a rule proposed May 9 by the Obama administration. The Department of Health and Human Services said the increase would bring service fees for Medicaid primary care in line with those paid by Medicare. Under the rule, physicians would see a 34 percent increase in average Medicaid primary care payments, according to the HHS.

Veterans Health Benefits: VETS LOSE SUIT ON MENTAL HEALTH CARE, Veterans for Common Sense v. Shinseki, 20 No. 1 Westlaw Journal Health Law 7, Westlaw Journal Health Law May 24, 2012 Courts cannot order the U.S. Department of Veterans Affairs to overhaul the way it cares for the treatment of military veterans with combat-related illnesses, a federal appeals court has ruled. The full 9th U.S. Circuit Court of Appeals said allegations of systemic delays and neglect in mental health care for veterans is something Congress, not the courts, needs to address.In a 10-1 decision, the appellate court reversed a prior 2-1 ruling by a 9th Circuit panel.

Reproductive Rights/Legislation: ARIZONA BANS FUNDING FOR PLANNED PARENTHOOD, OTHER ABORTION PROVIDERS, 20 No. 1 Westlaw Journal Health Law 8, Westlaw Journal Health Law May 24, 2012 Arizona Gov. Jan Brewer, R, has signed a bill that bans Planned Parenthood and other family planning organizations that perform abortions from receiving public funds. Signed into law May 4, House Bill 2800 excludes cases in which a clinic needs to perform an abortion in order to save the life of the mother or if the pregnancy is the result of an act of rape or incest. The legislation applies to any health care provider that is eligible for federal funding under 42 U.S.C. 1396d(1)(2)(B)

Reproductive Rights: JUDGE STOPS TEXAS FROM BARRING PLANNED PARENTHOOD FROM HEALTH PROGRAM, Planned Parenthood Ass'n of Hidalgo County v. Suehs, 20 No. 1 Westlaw Journal Health Law 9, Westlaw Journal Health Law May 24, 2012 A federal judge has temporarily blocked the state of Texas from excluding Planned Parenthood clinics from participating in the government-funded Women's Health Program because the organization provides abortions. The state's Health and Human Services Commission initiated a rule last year barring it from contracting with entities affiliated with abortion providers.Putting the state rule on hold until he can hear full arguments in the case.

Medical Devices/Patents: CORDIS TO APPEAL $40 MILLION JUDGMENT IN STENT PATENT CASE, Boston Scientific Corp. v. Cordis Corp., 20 No. 1 Westlaw Journal Health Law 10, Westlaw Journal Health Law May 24, 2012 Cordis Corp. has filed a notice of appeal in response to a $40 million judgment entered in favor of Boston Scientific Corp. after a Delaware federal judge doubled a jury verdict in a stent design patent dispute. U.S. District Judge Sue L. Robinson of the District of Delaware issued the enhanced damages order March 13, saying the doubling of the jury's $19.5 million award was "reasonable under the circumstances."She denied Cordis' motion for judgment as a matter of law

Medical Malpractice: CALIFORNIA JURY AWARDS $74.5 MILLION FOR GIRL'S BIRTH INJURIES, Blunt v. Haupt, 20 No. 1 Westlaw Journal Health Law 11, Westlaw Journal Health Law May 24, 2012 A California jury has awarded $74.5 million to the parents of a 3-year-old girl who suffers from cerebral palsy allegedly caused by an obstetrician's negligence during her birth. The San Luis Obispo County Superior Court jury awarded $53 million in future medical expenses for Jennifer and Andrew Blunt's daughter Sofia, in addition to $21.5 million in damages for emotional distress, future lost wages and noneconomic damages. The verdict is thought to be one of the largest in California history.

Nursing Homes: CLASS ACTION ALLEGES INADEQUATE STAFFING AT CALIFORNIA NURSING HOMES, Mingura v. HCR ManorCare, 20 No. 1 Westlaw Journal Health Law 12, Westlaw Journal Health Law May 24, 2012 Nursing home chain HCR ManorCare lured elderly and dependent adults to enter its facilities in California by concealing that they regularly fell below the "bare minimum" staffing requirements, a class-action lawsuit alleges. Plaintiff Rebeca Mingura says the company violated state health and consumer protection laws by failing to provide adequate staff to fulfill the legal minimum amount of direct nursing care to each patient.

Torts -- Nursing homes -- Jurisdiction -- Non-residents -- Action against non-resident defendants who had ownership interests in entities that owned and operated Florida nursing homes -- Circuit court erred in finding that it had personal jurisdiction over defendants where, although plaintiff established defendants' ownership interests in nursing home's operating and management companies, plaintiff failed to establish any connexity between defendants' financial interests and alleged abuse from which plaintiff's claims arise, and failed to show that defendants have sufficient minimum contacts -- Plaintiff failed to demonstrate that defendants had control over day-to-day operations of nursing home sufficient to establish agency relationship where affidavit provided by plaintiff established nothing more than defendants' ownership interest -- Ownership interest, without more, is insufficient to establish personal jurisdiction over non-resident defendants
HARRIS SCHWARTZBERG; HARRIS SCHWARTZBERG TRUST; STEVEN SCHWARTZBERG TRUST; JUDITH SCHWARTZBERG TRUST; SCHWARTZBERG DESCENDANTS TRUST; HARRIS SCHWARTZBERG 2003 TRUST; STEVEN SCHWARTZBERG 2003 TRUST; HS MIDWEST TRUST #1; JS MIDWEST TRUST; FAM MIDWEST TRUST; JUDITH SCHWARTZBERG 2003 TRUST; HARRIS SCHWARTZBERG 2004 GST TRUST 1; HARRIS SCHWARTZBERG 2004 GST TRUST 2; JUDITH SCHWARTZBERG 2004 GST TRUST 1; JUDITH SCHWARTZBERG 2004 GST TRUST 2; SCHWARTZBERG FAMILY 2004 GST TRUST; SCHWARTZBERG 2004 DESCENDANTS TRUST; JS NATIONAL TRUST; HS NATIONAL TRUST #1; HS NATIONAL TRUST #2; FAM NATIONAL TRUST; and MAXWELL STOLZBERG, Appellants, v. KIM K. KNOBLOCH, as Personal Representative of the Estate of William Knobloch, Deceased, Appellee. 2nd District.

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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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