Constitutional law, habeas corpus, insurance coverage, health care reform, and fresh summer squash sauteed in rosemary-sage butter

Attorney's fees -- Prevailing party -- Award of fees is reversed where final judgment entered in favor of the prevailing parties was reversed
BLACK DIAMOND PROPERTIES, INC., BLACK DIAMOND REALTY, INC., AND STANLEY C. OLSEN, Appellants, v. CHARLES S. HAINES, KATHY HAINES, RICHARD O. CONBOY, JACKSON RANDOLPH, LARRY LAUKKA, ANGELO MASUT, BRENDA MASUT AND TOM HOWELL, Appellees. 5th District.

Bankruptcy -- Chapter 11 -- Confirmation of plan -- Debtors may not obtain confirmation of Chapter 11 cramdown plan that provides for sale of collateral free and clear of creditor's lien but does not permit creditor to “credit-bid” at the sale
RADLAX GATEWAY HOTEL, LLC, et al., Petitioners v. AMALGAMATED BANK. U.S. Supreme Court.

Dissolution of marriage -- It was error to require both parties to obtain life insurance to secure child support where such relief was not requested, and where court made no findings that special circumstances justified requirement and no findings regarding insurability, cost of insurance, or ability to afford insurance -- Court erred in finding that child could not be home schooled where child would not reach kindergarten age until twenty months after date of final judgment -- It is improper to determine best interest of child prospectively
STEVEN EDWARD EISELE, Appellant/Cross-Appellee, v. HEIDI MARIE EISELE, Appellee/Cross-Appellant. 2nd District.

Iranian Investments: CALIFORNIA MEASURE SEEKS TO BAN INSURERS' INVESTMENTS IN IRAN, 8 No. 2 Westlaw Journal Insurance Bad Faith 9, Westlaw Journal Insurance Bad Faith May 29, 2012 The California Insurance Commission has passed an initiative over opposition from insurance companies and associations, that seeks to restrict insurers from investing state residents' premiums in entities involved with building Iran's nuclear sector or developing the country's petroleum or natural gas. Although State Farm Insurance Co. and insurance industry trade organizations registered their opposition to Assembly Bill 2160, the measure passed after a committee hearing May 2.

Health Care Reform: NOTRE DAME, CATHOLIC GROUPS SUE TO BLOCK CONTRACEPTION MANDATE, Univ. of Notre Dame v. Sebelius, 22 No. 34 Westlaw Journal Insurance Coverage 3, Westlaw Journal Insurance Coverage June 1, 2012 May 21 (Reuters) - The University of Notre Dame and dozens of other Catholic institutions have sued the Obama administration to block a government regulation that requires employers to provide health insurance coverage for contraceptives to employees. The regulation, which is part of the president's health care reform law, has sparked a nasty fight between the administration and the Roman Catholic Church, which opposes artificial contraception. Some 43 Catholic groups have sued.

Professional Services Exclusion: PROPERTY MANAGER GETS NO COVERAGE FOR FATAL APARTMENT FIRE, Golden Eagle Ins. Corp. v. Lemoore Real Estate & Prop. Mgmt., 22 No. 34 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage June 1, 2012 A property manager will get no coverage for a $29 million judgment in wrongful-death suits stemming from an apartment complex fire that killed five people, a California appeals court has ruled. The 5th District Court of Appeal held that the professional services exclusion in Lemoore Real Estate & Property Management Inc.'s business liability policy with Golden Eagle Insurance Corp. precluded coverage for the judgment.

  Duty to Defend: HOMEBUILDER HAD RIGHT TO CONTROL ITS DEFENSE IN DEFECT SUITS, Travelers Prop. Cas. Co. v. Centex Homes, 22 No. 34 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage June 1, 2012 Homebuilding giant Centex Homes claimed the right to control its legal defense when its insurer, Travelers Property Casualty Company of America, stalled in defending it in a pair of construction defect lawsuits, a California federal judge has ruled. "As the duty to defend arises immediately upon tender, Travelers' delay in providing Centex with a defense divested it the insurer of the right to control that defense," U.S. District Judge Samuel Conti of the Northern District of California said. 

Criminal law -- Sentencing -- Holding of United States Supreme Court in Graham v. Florida that the Eighth Amendment prohibits life sentences without the possibility of parole for juveniles convicted of nonhomicide crimes does not prohibit imposition of seventy-year sentence on fourteen-year-old juvenile defendant convicted of attempted first-degree murder -- Question certified
SHIMEEK GRIDINE, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Trafficking in cocaine -- Habeas corpus -- Claim that section 893.13, as amended by section 893.101, is facially unconstitutional because it eliminates all mens rea from drug statute should have been raised on direct appeal or in post conviction proceedings, rather than in habeas petition -- Assuming trial court deemed habeas petition a rule 3.850 motion, trial court correctly determined it would be time-barred and declined to transfer it to sentencing court where relief was sought four years after judgment and sentence became final
MALCOLM D. DELANCY, JR., Appellant, v. KENNETH S. TUCKER, Secretary, Department of Corrections, Appellee. 1st District.

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On Today’s Menu: some recent health law specials

Congress Introduces Congressional Resolution To Ensure That Any National Health Care Reform Legislation Directly Addresses The Health Needs Of Women, 16 No. 11 Andrews Health L. Litig. Rep. 8, Andrews Health Law Litigation Reporter March 25, 2009
U.S. Sen. Debbie Stabenow, D-Mich., has introduced a congressional resolution to ensure that any national health care reform legislation directly addresses the health needs of women. The Feb. 12 resolution calls on Congress to pass a reform bill within 18 months that guarantees health care coverage for women and families. On the same day, U.S. Rep. Jan Schakowsky, D-Ill., introduced an identical resolution in the House. "Women are the gatekeepers of their families' health," Stabenow said.

Legislation: Both Houses Of Congress Have Introduced Joint Bills To Reverse A Key U.S. Supreme Court Medical Device Ruling, 16 No. 11 Andrews Health L. Litig. Rep. 1, Andrews Health Law Litigation Reporter March 25, 2009
Members of both houses of Congress have introduced joint bills to reverse a key U.S. Supreme Court decision that barred patients injured by medical devices from suing for damages in state court. Last year the nation's highest court ruled in an 8-1 decision that a 32-year- old federal regulation shields medical device makers from liability under state laws in suits claiming injury from devices that received Food and Drug Administration approval. Riegel et al. v. Medtronic Inc.

Consumer Protection: Extendicare Wins Dismissal Of Fraud Class Action, Bernstein v. Extendicare Health Servs., 16 No. 11 Andrews Health L. Litig. Rep. 2, Andrews Health Law Litigation Reporter March 25, 2009
A federal judge has dismissed a class-action lawsuit accusing nursing home operator Extendicare Health Services of using false and deceptive advertising to attract prospective residents while providing substandard care at its Minnesota facilities. The U.S. District Court said the false-advertising statements alleged by plaintiff Laura Bernstein constituted mere "puffery" and could not be the basis for a consumer protection action.

EMTALA: Family Loses Bid To Sue Hospital Failing To Properly Screen And Stabilize A Man Who Later Died From A Drug Overdose, Cintron v. Pavia Hato Rey Hosp., 16 No. 11 Andrews Health L. Litig. Rep. 3, Andrews Health Law Litigation Reporter March 25, 2009
A federal judge in Puerto Rico refused to reconsider a decision in favor of a hospital accused of failing to properly screen and stabilize a man who later died from a drug overdose. The family of Luis Valentn-Cintr"n sued Pavia Hato Rey Hospital for violating the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. 1395dd.Denying the family's bid to reopen the case, the U.S. District Court affirmed his prior finding that no emergency condition existed at that time.

Health Care Fraud: U.S. Government Has Joined Two San Francisco Federal Court Whistle-Blower Suits Against J&J Subsidiary, United States v. Scios Inc., 16 No. 11 Andrews Health L. Litig. Rep. 4, Andrews Health Law Litigation Reporter March 25, 2009
The U.S. government has joined two San Francisco federal court whistle-blower suits accusing Johnson & Johnson subsidiary Scios Inc. of illegally selling its breathing drug Natrecor for unapproved uses. Former Scios sales managers turned whistle-blowers Joe Strom and Jeffrey A. Smith filed separate suits in 2005 in the U.S. District Court for the Northern District of California. Both suits alleged violations of the False Claims Act, 31 U.S.C. 3729.

HIPAA: CVS Caremark Has Agreed To Pay $2.25 Million To Settle Charges That It Violated Federal Privacy Regulations, In re CVS Caremark Corp., 16 No. 11 Andrews Health L. Litig. Rep. 5, Andrews Health Law Litigation Reporter March 25, 2009
CVS Caremark has agreed to pay $2.25 million to settle charges that it violated federal privacy regulations when pharmacy employees threw out prescription records and drug bottles into open trash bins. The settlement resolves a joint investigation by the U.S. Department of Health and Human Services and the Federal Trade Commission prompted by 2006 media reports that Dumpsters behind certain CVS pharmacies contained pill bottles with patients' names, Social Security numbers and insurance information.

HIPAA: Defendants Get Access To Asbestos Claimants' Medical Records, In re Asbestos Prods. Litig., 16 No. 11 Andrews Health L. Litig. Rep. 6, Andrews Health Law Litigation Reporter March 25, 2009
Medical records related to the diagnosis of asbestos-related conditions used by plaintiffs in the asbestos multidistrict litigation are discoverable by the defendants, the federal court overseeing the cases has ruled. Doctors had argued that releasing the records, including X-rays and pulmonary function tests, would violate patients' privacy rights under the Health Insurance Portability and Accountability Act, 110 Stat. 1936.The multidistrict litigation is a consolidation of all federal asbestos cases.

Hospital Billing: Hospital In Missouri Is Facing A Class-Action Complaint Alleging It Charges Emergency Room Rates For Non-Emergency Care, Donley v. St. Luke's Health Corp., 16 No. 11 Andrews Health L. Litig. Rep. 7, Andrews Health Law Litigation Reporter March 25, 2009
A hospital in Missouri is facing a class-action complaint alleging it charges emergency room rates for non-emergency care. Michael Donley claims in a state court lawsuit that St. Luke's Health Corp. billed him $250 in emergency room rates for care he received in one of the hospital's urgent care centers, filed in the St. Louis County Circuit Court.


Medicare: U.S. Has Moved To Dismiss A Proposed Class-Action Suit, Saying Retirees Have No Standing For Medicare Challenge, Hall v. Johnson, 16 No. 11 Andrews Health L. Litig. Rep. 9, Andrews Health Law Litigation Reporter March 25, 2009
The federal government has moved to dismiss a proposed class-action suit accusing the Department of Health and Human Services of illegally denying retirees their rightful Social Security benefits because they wish to opt out of Medicare. Plaintiffs Brian Hall, Lewis Randall and Norman Rogers allege that HHS and the Social Security Administration told them they would lose the thousands of dollars they had paid into Social Security over the years if they did not enroll in the federal health care.

State Services: JUDGE WON'T TOSS SUIT ON CARE OPTIONS FOR NYC'S MENTALLY ILL, Disability Advocates v. Paterson, 16 No. 11 Andrews Health L. Litig. Rep. 10, Andrews Health Law Litigation Reporter March 25, 2009
An advocacy organization may pursue its lawsuit alleging that mentally disabled New York City residents are unnecessarily institutionalized in "adult homes" because the state fails to provide community-based alternatives, a federal judge has ruled. In an exhaustive 112-page opinion, U.S. District Judge Nicholas G. Garaufis found, among other things, that Disability Advocates Inc.'s claims fall squarely within Title II of the Americans with Disabilities Act, 42 U.S.C. 12132.

Surgical Error: FLA. WOMAN SUES OVER BUNGLED COLOSTOMY PROCEDURE, Timmerman v. Kasemsap, 16 No. 11 Andrews Health L. Litig. Rep. 11, Andrews Health Law Litigation Reporter March 25, 2009
What should have been a routine colostomy reversal turned into a nightmare for a Florida woman whose state court lawsuit alleges the procedure resulted in her rectum being connected to her vagina. Lori A. Timmerman sued Dr. Pachavit Kasemsap and his employer, Surgical Associates of North Florida, in the St. Johns County Circuit Court. According to the complaint, Kasemsap negligently performed a colostomy reversal.

Wrongful Death: DOCTORS KILLED MAN TO HARVEST ORGANS, FAMILY SAYS, Jacobs v. Ctr. for Organ Recovery & Educ., 16 No. 11 Andrews Health L. Litig. Rep. 12, Andrews Health Law Litigation Reporter March 25, 2009
The parents of an 18-year-old man who suffered brain damage in a snowboarding accident say two doctors at a Pennsylvania hospital "intentionally killed" him to harvest his vital organs, according to a wrongful-death suit filed in federal court. Michael and Teresa Jacobs, of Belleview, Ohio, say their son Gregory died after doctors at Hamot Medical Center in Erie prematurely removed his breathing tube even though he had not suffered brain or cardiac death.

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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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