Plaintiff’s decedent was a nursing home resident who developed severe decubitus ulcers and suffered from dehydration and malnutrition. Plaintiff alleged medical malpractice, negligence per se and third party beneficiary breach of contract. Defendants moved to dismiss and for judgment on the pleadings. Citing Brogdon v. National Healthcare Corp., 103 F.Supp. 2d 1322 (N.D. Ga. 2000), and Conley v. Life Care Ctrs. of Am., Inc., 2007 Tenn. App. LEXIS 13 (Tenn. Ct. App. 2007) found that there is no private cause of action under the nursing home regulations and dismissed the negligence per se claim. The Court found that a third party breach of contract claim, to wit: that Plaintiff was a beneficiary of the nursing home’s contract with Medicaid, is governed by State law. The Court denied Defendant’s motion to dismiss that claim, but cited Conley for the proposition that Plaintiff must satisfy all elements of the Tennessee Medical Malpractice Act to prevail on that claim. The motion for judgment on the pleadings was based on Plaintiff’s delay in responding to the motion to dismiss, which was excused due to difficulties with the court’s electronic filing system.
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