Nursing Home Cases: Summary Judgment

Ostrom v. Manorcare Health Servs., 2007 U.S. Dist. LEXIS 4106 (D. Mich. 2007). Plaintiff, an Alzheimer’s patient, exited the nursing home on March 22, 2004 through an unlocked door. He was chased by staff as he went into a courtyard. In the courtyard, he tripped over a light post and suffered injury. He was found unresponsive and bleeding from the head. At the hospital, he was diagnosed with a severe head injury, was placed on a feeding tube, and later returned to a nursing home where he remained without improvement. Plaintiff’s sued for ordinary negligence. He alleged a failure to provide him with the proper standard of care by failing to perform a risk assessment for falls, wandering and elopement, failing to implement a detailed plan of care, and failing to provide the facilities, services and staff to keep him safe. Defendants filed a motion for summary judgment arguing that the claims sounded in malpractice and that Plaintiff failed to file an affidavit of merit. The Court found that Plaintiff’s late-filed claim alleging inadequate staffing would involve medical judgment, but that general risks, such as not securing the courtyard and making it safe would not. The fact that Plaintiff had Alzheimer’s does not by itself transform a negligence case into a malpractice case.

Ostrom v. Manorcare Health Servs., 2007 U.S. Dist. LEXIS 10409 (D. Mich. 2007). Defendant nursing home filed a motion for reconsideration seeking clarification on several issues addressed in a summary judgment order. The Court clarified that the plaintiff’s inadequate staffing claim was dismissed. Plaintiff’s “chasing claim” did not implicate professional medical judgment. Finally, the court found that Plaintiff’s claim of being placed “in a position that could reasonably cause injury” was vague and at best duplicative; that claim was dismissed.

Gray v. Mariner Health Cent., Inc., 2006 U.S. Dist. LEXIS 65725 (D. Miss. 2006). Annie Pickens resided at Defendants’ nursing home from October 8, 2002 until April 19, 2003, dying the next day. A wrongful death action was filed in State court on August 30, 2004; defendants removed it to federal court on January 10, 2005. Defendants moved to dismiss and on February 7, 2005, Plaintiffs agreed to dismiss without prejudice to allow them to comply with the medical malpractice act by giving 60 days’ notice of intent to sue and by certifying that a medical expert was consulted before filing suit. On October 17, 2005, the action was refilled in federal court. Defendants moved for summary judgment, arguing that the two-year statute of limitations barred the action. The Court rejected Plaintiff’s “discovery” arguments and its argument that Miss. Code Ann. § 15-1-69 gave Plaintiff an additional year to re-file after dismissing a claim. Nonetheless, Defendant’s motion was denied because filing the original action tolled the Statute of limitations; when Plaintiff dismissed the original action, the clock resumed clicking with 233 days remaining. The new action was filed within that time period.

Estate of McAdams v. Mariner Healthcare Mgmt. Co., 2006 U.S. Dist. LEXIS 43679 (D. Miss. 2006). Plaintiff filed its action on April 13, 2004. Plaintiff was a resident at the defendant nursing home from January 8, 2002 through March 4, 2002. The applicable statute of limitations was two years from the date of discovery. The court found that Plaintiff should have known of the resident’s injuries not later than March 4, 2002 and therefore, the complaint was barred if not filed by March 4, 2004. Plaintiff alleged it was delayed because the Medicare website listed the wrong name for defendant but since no complaint was timely, Plaintiff’s failed to assert an excusable reason for not filing within the statute of limitations. Defendant’s motion for summary judgment was granted.

Corbett v. Manorcare of Am. Inc., 146 P.3d 1027 (Ariz. Ct. App. 2006). Plaintiff appealed from trial court’s grant of summary judgment to Manor Care, its dismissal of claims against an individual and its award of attorney’s fees to the defendants. Plaintiff originally sued the parent corporation. The case was removed to federal court where, after discovery, Plaintiff amended the complaint to sue the subsidiaries. The court granted a motion to dismiss the subsidiaries without prejudice, finding that the claims were time-barred. The trial court later dismissed the claims against the parent company, finding that Plaintiff sued the wrong defendant. That case was timely appealed to the Ninth Circuit. Later, while the district court case was pending, Plaintiff brought suit against the subsidiaries. The defendants moved for summary judgment alleging Plaintiff was barred by res judicata and estoppel. The trial court granted defendants’ motion. Plaintiff appealed and failed to raise the contract and common law negligence claims on appeal; they were deemed abandoned. Regarding statutory negligence and violations of Arizona Adult Protective Services Act, the court found that the parties in the district court action were not the same since, at the time summary judgment was granted, the subsidiaries had been dismissed without prejudice. Thus, res judicata did not apply. The subsidiaries then argued that the district court’s ruling that dismissal of the subsidiaries in the district court action based on the claims being time-barred estopped the plaintiff from litigating that issue again in State court. The court found the statute of limitations issue had not been fully litigated and estoppel did not apply, in part, because the limitations period was changed by the legislature while the district court action was pending. The court reversed the award of attorney’s fees, finding insufficient evidence to support it, but indicated that the trial court could revisit the issue after the trial court proceedings concluded.

Leong v. Woods, 2006 Cal. App. Unpub. LEXIS 230 (California Unpublished Opinions 2006). Defendant doctor was in charge of resident’s care at nursing home. Resident’s nutritional status was compromised, dropping approximately 30 pounds and pressure ulcers progressed from Stage II to Stage IV; when resident was taken to the hospital shortly before death, she was malnourished. Doctor filed an expert affidavit stating that he met the standard of care and then filed a motion for summary. Plaintiff responded with an affidavit prepared by Locatell. Defendant’s motion was granted and Plaintiff’s appealed. Locatell’s affidavit was unclear on causation and the court stated “the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the [breach] was a cause-in-fact of the plaintiff’s injury.” Still, there was sufficient evidence to create a triable issue of fact, in part because Defendant admitted he was responsible for the plan of care, that adequate nutrition is critical to wound healing, and the evidence was replete concerning inadequate nutrition. The court also found evidence of the doctor’s callous disregard due to his failure to follow up on the resident’s care despite indications that she was suffering from malnutrition. The summary judgment was reversed.

Note: This case provides excellent insight concerning how to structure an affidavit in response to a motion for summary judgment.

Estate of Githens v. Bon Secours – Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272 (Fla. 2nd DCA 2006). Plaintiff, the estate of a 92-year-old resident sued for neglect. The resident was wheelchair-bound and had Parkinson’s, Alzheimer’s and osteoporosis. When she began showing signs of abnormality, she was examined and X-rays revealed a non-displaced spiral fracture of the distal tibia in her right leg. She was hospitalized and died a month later. The nursing home moved for summary judgment, alleging that the Plaintiff improperly relied on a stacking of inferences. The nursing home contended that the basic inference was that the fracture occurred from improper handling of the resident and that she could have moved in a way that caused the fracture. The estate responded, pointing to evidence that the resident was totally dependant for ambulation, turning and repositioning. It argued there was no evidence supporting the nursing home’s theory that the resident injured herself and there was no reasonable explanation for the injury other than through negligence of the staff. In granting the nursing home’s motion, the trial court stated that the Estate’s case “impermissibly relies on the stacking or pyramiding of inferences.” The court of appeals reversed. Citing Nielsen v. City of Sarasota, 117 So.2d 731, 733 (Fla. 1960), the court noted that “if a party to a civil action depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences.” In the case at bar, depositions of the nursing home staff indicated that the resident was totally or almost totally dependent on the staff for ambulation and movement, and staff were not aware of anyone else who moved her. Thus, the nursing home did not negate the original inference and failed to suggest competing inferences are reasonable inferences.

Sharp v. Parkview Care Ctr., Inc., 2006 La. App. LEXIS 2128 (La. Ct. App. 2006). Summary judgment for defendants was reversed. Resident, a stroke victim, was paralyzed on the right side including his mouth and throat. His condition interfered with chewing and swallowing. At admission, the dietician noted resident’s diet as no concentrated sweets and chop meat. Later it was changed to 1800 calorie diabetic diet, then later to a chopped soft diet. In 1999, a barium swallow did not show any signs of difficulties in swallowing. In 2002, resident was alone in his room eating a sandwich when he began to choke. Resident wheeled himself into a hall, gestured for help, was found by a laundry attendant who called for nurses. Nurses administered the Heimlich and CPR until EMTs arrived. A quarter size piece of meat was removed from resident’s throat. He was transported to the hospital where he died. Defendants filed a motion for summary judgment, arguing that Plaintiff presented no evidence of a deviation from the standard of care. One of Plaintiff’s experts opined that the physician deviated from the standard of care by not continuing the chopped, soft diet. Plaintiff’s nursing expert opinioned that the nursing home breached the standard of care by failing to document the record properly to indicate resident’s difficulty in swallowing and in failing to update the plan of care to reflect this problem. The court of appeals found that these opinions raised a genuine issue of material fact.

SHERIDAN v. WEST BLOOMFIELD NURSING & CONVALESCENT CTR., INC., 2007 Mich. App. LEXIS 613 (Mich. Ct. App. 2007). Summary judgment reversed. The dispositive issue was whether plaintiff’s claims were for ordinary negligence or medical malpractice, which was reviewed de novo. Two questions bear on that issue: (1) whether the claim pertains to an action occurring within the course of a professional relationship (undisputed in this case); and (2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience. Another way to phrase the second question is whether it raises questions involving medical judgment. The question in this case, whether two nursing assistants failed to maintain a secure grip on the plaintiff while moving her, did not require expert testimony.

KLEIN v. LAKE ORION NURSING CTR., 2007 Mich. App. LEXIS 334 (Mich. Ct. App. 2007). Summary judgment for Defendants affirmed. In this case, Plaintiff’s notice of her intent to sue defendants did not toll the wrongful death savings period pursuant to MCL § 600.5856(c), citing Waltz v. Wyse, 469 Mich. 642 (Mich. 2004). Same result in BURT v. ARNOLD NURSING HOME, 2007 Mich. App. LEXIS 279 (Mich. Ct. App. 2007).

HARRIER v. OAKWOOD SKILLED NURSING CENTER-TRENTON & BALMORAL, INC., 2007 Mich. App. LEXIS 903 (Mich. Ct. App. 2007). Resident fell at an assisted living facility; the fall caused a wrist fracture and broken ribs. She was transferred to a nursing home where she needed assistance for almost all personal care needs including using the toilet. Shortly after admission to the nursing home she was left unattended on the toilet even though a nurses aide was instructed to assist her. She fell and broke her hip. The complaint alleged that defendants knew of fall hazards but did not properly respond to them. The trial court granted summary judgment due to the absence of expert testimony. On appeal, the court reversed finding that no expert testimony was needed to show that Defendants failed to respond appropriately to the knowledge that resident was prone to fall and that it was negligent to abandon her in the face of a known danger. Decided: March 27, 2007.

Bedford Health Props., LLC v. Estate of Williams, 946 So. 2d 335 (Miss. 2006). Plaintiff filed suit alleging various claims: negligence; medical malpractice; malice and/or gross negligence; fraud; breach of fiduciary duty; statutory survival claim; and statutory wrongful death. After Defendants answered, Plaintiffs moved to substitute parties and for leave to amend the complaint. Several incorrect defendants were dismissed. More than a year after Plaintiffs’ motion was filed, the court granted leave to amend the complaint and substitute defendants. The estate then filed an amended complaint naming additional defendants. Defendants then filed a motion for summary judgment, contending the amended complaint did not relate back to the original complaint pursuant to M.R.C.P. 15(c). The trial court denied the motion, but granted a certificate for interlocutory appeal, and appeal was granted. On appeal the issues where (1) whether the Estate properly substituted a defendant for a fictitious party; (2) whether the Estate’s amended complaint relates back pursuant to M.R.C.P. 15; and (3) whether the Estate’s claim was time barred by Miss. Code Ann. § 15-1-36. The court found that Plaintiff did not properly substitute a fictitious party under Rule 9(h); instead, the Plaintiff substituted incorrect parties for the correct ones. The court also found that the correct nursing facility and therefore the correct employee defendants were known. The court found that the amended complaint, which corrected the “place” where the injury occurred, related back to defendants of the original suit who remained in the case. The court found that Rule 15 was satisfied as to defendants that had notice of the original suit (the new corporate defendants were related corporations), but was not satisfied as to defendants where there was no proof of notice (individuals). As to those defendants with notice, the complaint was not barred by the statute of limitations.

Nat’l Heritage Realty, Inc. v. Estate of Boles, 947 So. 2d 238 (Miss. 2006). Prior to filing suit, Plaintiff opened an estate for resident in Tallahatchie County. After suit was filed, Defendants filed a motion to render appointment of the administrator void ab initio, contending the estate should have been filed in Leflore county. Plaintiffs then filed a petition for appointment of administrator in Leflore county and the Tallahatchie county probate was transferred to Leflore county. The chancery court denied Defendants’ motion to render the appointment void ab initio, but certified an interlocutory appeal. While Defendants pursued their interlocutory appeal, they also pursued summary judgment contending the administrator had no authority to file a wrongful death action, that she was no a spouse, child, parent or sibling, and that the appointment as administrator in the original estate was void ab initio. The trial court denied the motion for summary judgment and interlocutory appeal was granted. On appeal, the cases were consolidated. On appeal, the court found that Defendants had standing to challenge the jurisdictional basis of the probate proceeding. The court then found that the nursing home resident was a resident of Leflore county (where the nursing home was located). The court found that Miss. Code Ann. § 91-7-63(1) is an exclusive venue statute, making it jurisdictional in nature and that the original probate case should have been dismissed; transfer of the probate action failed to cure the underlying jurisdictional problem. As a result, the administrator had no authority to bring the suit and the trial court erred in not granting Defendants’ motion for summary judgment on that basis.

Note: Two issues come to mind from review of this case. First, in many cases it is worthwhile to retain estate counsel to handle probate matters because they will be more familiar with the process and can expedite handling it appropriately. Second, this case underscores the danger of multi-jurisdictional practice since in many States, residing in a nursing home does not change legal residence; in this case it did and failing to recognize it was significant.

Walker v. Whitfield Nursing Ctr., Inc., 931 So. 2d 583 (Miss. 2006). Summary judgment for Defendants was affirmed where the attorney’s certificate that the case was reviewed by an expert prior to filing was not attached to the complaint in compliance with Miss. Code. Ann. § 11-1-58. The court rejected Plaintiff’s substantial compliance argument. The court also rejected Plaintiff’s argument that Defendant waived this defense by failing to refer to it in the answer. Defendants’ “failure to state a claim” defense was sufficient in this case because Plaintiff failed to state a claim when they failed to comply with the statute.

Jenkins v. Pensacola Health Trust, Inc., 933 So. 2d 923 (Miss. 2006). Summary judgment was affirmed in part and reversed in part. The statute of limitations for underlying acts of negligence applies in a wrongful death suit; thus, Plaintiff claims for negligent acts occurring more than three years prior to the time the lawsuit was filed were barred. The court reversed that part of the summary judgment barring claims where Plaintiff did not provide a specific date of occurrence. Plaintiff has the burden of providing that the negligent act occurred, but Defendant has the burden of proving its affirmative defense.

Estate of Hazelton v. Cain, 2007 Miss. App. LEXIS 115 (Miss. Ct. App. 2007). Summary judgment was affirmed where Plaintiff provided no affidavit or substantive evidence to prove negligence or to demonstrate a causal link. Apparently Plaintiff responded to the motion for summary judgment by pointing to violations of nursing home regulations. Although violations of the regulations may be evidence of negligence, they do not create a separate cause of action and do not impose enforceable legal duties on the licensee or the administrator, as opposed to the nursing home itself. Further, the mere allegation that a State regulation was violated does not establish a cause of action. The evidence presented by Plaintiff was insufficient to sustain the cause of action.

Chiles v. D & J Serv., Inc., 2006 NY Slip Op 8333 (N.Y. App. Div. 2006). Summary judgment for nursing home was affirmed. Plaintiff was left alone by independent contractor ambulance driver when the driver escorted another patient to her residence. When driver returned, resident was missing, having wandered off. Resident was found 3 days later, having died from hypothermia. Nursing home could not be held vicariously responsible for independent contractor’s action when nursing home did not control him and the activity was not inherently dangerous. There was no non-delegable duty involved.

Everett v. Loretto Adult Cmty., Inc., 2006 NY Slip Op 6954 (N.Y. App. Div. 2006). In this “short” order, the court of appeals reversed in part denial of defendant’s motion for summary judgment. That portion of Defendants’ motion seeking summary judgment on punitive damages claims was improperly denied because Defendants met their burden on the motion by establishing the absence of any conduct that could be viewed as so reckless or wantonly negligent as to be the equivalent of conscious disregard of the rights of others. There was no claim in the complaint under N.Y. Public Health Law § 2801-d or based on the Omnibus Budget Reconciliation Act of 1987 so Defendants’ motion on those causes of action was properly denied.

Giandana v. Providence Rest Nursing Home, 2006 NY Slip Op 4189 (N.Y. App. Div. 2006). Resident, 91 year old allegedly sustained a fractured femur and multiple bruises while she was being transferred from bed to a wheelchair. An agency CNA, Akosah, had been assigned to assist the LPN on duty. After Plaintiff filed suit, the nursing home brought a third-party action against the agency CNA and her employer. Plaintiff moved for summary judgment, contending that the nursing home violated its own protocol set out in an “accountability book.” The accountability book had described the resident as “high risk” needing two people or a lifter when moved or transferred. The nursing home’s records described the injury as resulting from Akosah’s attempt to move the resident and, during the attempt, Akosah fell on the resident. The nursing home contended Akosah was not its employee and that it was not responsible for her violation of the rules. The court found that the nursing home was negligent for allowing the resident to be moved in an unsafe manner in contravention to its own policies. On further appeal, in Giandana v. Providence Rest Nursing Home, 2007 N.Y. LEXIS 162 (N.Y. 2007), the summary judgment was reversed. “[Q]uestions of fact relating to how decedent was injured, whether Akosah was involved, and whether the nursing home was otherwise negligent precluded a grant of partial summary judgment.”

Bullard v. St. Barnabas Hosp., 2006 NY Slip Op 1519 (N.Y. App. Div. 2006). Defendants’ motion for summary judgment granted and affirmed where experts for Defendants’ gave opinions that pressure ulcers on heels were result of vascual and arterial disease, leaving resident with no pulse in lower extremities. Plaintiffs’ expert offered only conclusory assertions and speculation that an earlier disagnosis and treatment of heel decubitus would have avoided bilateral amputation.

Adams v. Gables at Green Pastures Nursing Home, 2006 Ohio 6856 (Ohio Ct. App. 2006). The nursing home filed a motion for summary judgment, alleging it was a political subdivision entitled to sovereign immunity. Plaintiff’s expert was deposed and concluded that the nursing home deviated from the standard of care by failing to develop and implement an acute care plan for falls, an immediate care plan, any kind of care plan that addressed high-risk falls. In a three-sentence opinion, the trial court denied the motion for summary judgment. In reviewing the immunity defense, the court of appeals found a three-tier analysis applied. First, did the alleged harm occur in connection with a governmental or proprietary function? Second, if it was a governmental function and immunity applies, does an exception exist? If an exception exists, then is there a defense to liability? The parties stipulated that the nursing home is a political subdivision, that the alleged harm occurred in connection with a proprietary function and that its employees were allegedly negligent in carrying out a proprietary function. Thus, the first two tiers of the analysis were satisfied and review of the third tier was appropriate. The nursing home relied on Ohio R.C. § 2744.03(A)(5), contending it was not liable because the injury resulted from the exercise of judgment or discretion. Plaintiff argued the code section did not apply because prevention was required and no plan was put in place. The nursing facility countered that the code section applied because it had a policy relating to fall prevention, however, there was no evidence of a policy. The court of appeals affirmed finding a genuine issue of material fact concerning whether the facility had a policy on fall prevention. The nursing home’s motion for summary judgment on claims arising out of 42 C.F.R. § 483 et seq. was properly denied as moot after plaintiff conceded the regulations do not provide for a private cause of action.

Sullivan v. Chattanooga Med. Investors, LP, 2006 Tenn. App. LEXIS 55 (Tenn. Ct. App. 2006). The trial court granted Defendants’ motion for summary judgment due to the limitations period having expired. Plaintiff argued the limitations period was tolled by T.C.A. § 28-1-106. The trial court rejected that argument because the resident had granted a durable power of attorney to Plaintiff prior to becoming incompetent. On appeal, the court found that the statute does not toll the limitations period only when there is no one to act for the plaintiff. Defendants also argued that the Uniform Durable Power of Attorney Act removed the disability by binding a principal regarding actions taken by an agent. Although the court agreed as to actions, the UDPAA does not bind a principal where the agent fails to take action. The complaint was not untimely because the limitations period was tolled. The judgment of the trial court was reversed. Decided: January 26, 2006. Appeal granted Sullivan v. Chattanooga Med. Investors, LP, 2006 Tenn. LEXIS 680 (Tenn. Aug. 21, 2006).

Burk v. RHA/Sullivan, Inc., 2006 Tenn. App. LEXIS 637 (Tenn. Ct. App. 2006). Resident suffered from Alzheimers’s dementia. While he was in the nursing home, he developed a severe scrotal infection. He was taken to the hospital on September 8, 2003 where hospital personnel described his condition as the worst case of neglect they had ever seen. Resident died on November 4, 2003. Suit was filed on September 30, 2004. Trial court granted summary judgment finding that Plaintiffs filed suit after the one-year statute of limitations ran. Plaintiffs argued on appeal that in a wrongful death action, the limitations period is one year from discovery. T.C.A. § 29-26-116(a). The court found that the facts establishing the date of discovery were clear; hospital personnel told Plaintiffs no later than September 9, 2003, that it was the worst case of neglect they had seen. The court went on to note that Tennessee’s legal disability statute, T.C.A. § 28-1-106, tolls the statute of limitations for legally disabled individuals for so long as the disability of unsound mind remains regardless of whether the individual has had a legal guardian appointed to pursue claims of his behalf. The court concluded that the trial court was correct in granting summary judgment on the discovery rule, but vacated the judgment and remanded the care for consideration of whether Resident suffered from a legal disability. Decided: October 2, 2006.

Conley v. Life Care Ctrs. of Am., Inc., 2007 Tenn. App. LEXIS 13 (Tenn. Ct. App. 2007). Stinson, a 75 year old who was struck by another resident, fell and broke her hip. She died four months later. The resident who struck her, Johnson, had been approved for placement at the nursing home after he was evaluated by the State. Gensis was under contract with Life Care to provide mental health services for residents and those services were provided to both Stinson and the Johnson. Genesis visited Johnson weekly during his 17 month stay at Life Care, at no time recommending that Johnson be discharged or separated from other residents. After Stinson’s death, Plaintiff sued Life Care. After Life Care pled comparative fault, Plaintiff amended her answer to assert claims against Genesis and the State of Tennessee. Prior to trial, the court granted various motions for partial summary judgment and motions in limine. Plaintiff’s claims under OBRA were not allowed as they were premised on a “national standard of care”; claims relating to elopements, deficient psycho-social care and psychotropic medications were found to have nothing to do with the injury; the trial court found that alleged negligent use of psychotropic medical was not supported by the evidence; survey deficiencies were excluded; evidence that Johnson hit other residents after he hit Stinson was not allowed. Evidence of statements indicating the Life Care had notice of Johnson’s conduct prior to striking Stinson was not allowed because Plaintiff could not identify the declarants who made those statements. Prior to trial, the court granted Genesis’ motion for summary judgment. The case then went to trial against Life Care and the jury returned a verdict for Plaintiff of $130,000. Both parties appealed. Regarding the trial court’s refusal to allow the TEPA claim, the court of appeals found that Plaintiff’s failed to state a claim under the Act. Admitting Johnson to the facility did not inflict “physical pain, injury or mental anguish” on Stinson and did not deprive her of any services. The court affirmed the trial court’s decision to leave the State on the jury verdict form even though this created an empty chair since Plaintiff was required to pursue its claim against the State through the claims commission. In affirming the trial court’s grant of partial summary judgment on Plaintiff’s negligence per se claims, the court found that the “federal regulations are simply too vague and general to constitute a standard of care by which a jury, or for that matter a court, can effectively judge the acts or omissions of health care providers and nursing home operators.” The court went further in concluding that claims based on the federal regulations would violate Tennessee’s Medical Malpractice Act by creating a national standard of care. The court of appeals affirmed summary judgment on Stinson’s claims relating to dietary maintenance, toileting, resident assessment activities, grooming, hygiene and care planning because the court determined they were unrelated to the assault. The court reversed summary judgment for Genesis. Life Care had opposed the motion, providing the affidavit of Dr. James Powers who opined that Genesis had a duty to assess Johnson, evaluate whether he was appropriate for admission, advise Life Care if he was not properly admitted, make recommendations for discharge where appropriate and make recommendations concerning whether he was able to interact with other residents. The court found that this affidavit, together with Plaintiff’s experts, created a genuine issue of material fact. The court then vacated the verdict below because both Plaintiff and Life Care were entitled to a new trial where the comparative rights and responsibilities of the parties could be resolved in one action. The court went on to resolve evidentiary issues before it, finding no error in the trial court’s decision to exclude evidence of neglect over a period of months prior to the assault since Plaintiff failed to show how it was related to the assault. Although Life Care objected to Plaintiff’s experts based on the locality rule, the court found no error in allowing them to testify since they were familiar with nursing home protocols in rural communities. Finally, the court concluded that it was not error to grant Plaintiff’s motion in limine to prevent Life Care from introducing Plaintiff’s pleadings regarding the State; although factual allegations may be admitted against a party, the allegations Life Care sought to introduce did not constitute factual statements or admissions of fact. Decided: January 4, 2007.

Note: This decision is troubling on several levels. Although it does not hold expressly that OBRA cannot be used as evidence of the standard of care, the dicta in this decision essentially guts the OBRA regulations by stating they are too vague and general to constitute a standard of care. The recurring flaw in this decision is the court’s refusal to acknowledge that every nursing home that accepts Medicare and/or Medicaid is required to adhere to the same quality of care regulations and that those regulations are clearly not too vague or general to be enforced with monetary sanctions. The other troubling feature of the decision is the court’s failure to recognize harm when substandard care is provided by rejecting all claims that were not tied to the assault. Attorneys for the Plaintiffs have indicated they intend to appeal to the Tennessee Supreme Court.

Gray v. Woodville Health Care Ctr., 2006 Tex. App. LEXIS 6904 (Tex. App. 2006). Resident went to a nursing home after surgery due to a right hip fracture. After developing an upper respiratory infection and a urinary tract infection, he was re-hospitalized. He became unresponsive and was placed on hospice with family agreement. His condition worsened and he died. The family filed a wrongful death suit and Defendants moved for summary judgment which was granted; Defendants claimed Plaintiff failed to present any evidence of causation. On appeal, the court found that absent res ipsa loquitur, expert testimony is required to prove causation. The court found that the opinions of Plaintiff’s expert, which were that a failure to provide care caused resident’s death, were conclusory and speculative; essentially the court found fault with the reports because they failed to include facts relating to causation. Decided: August 3, 2006.