by Mark Bauman | Jun 17, 2023 | Legal News, Nursing Home Litigation
On June 30, 2009, in an opinion offered by the Honorable Richard Lowell Nygaard, the U.S. Third Circuit Court of Appeals permitted an action against a county operated nursing home to proceed under 42 U.S.C. § 1983 for violations of the Omnibus Budget Reconciliation Act of 1987 (OBRA) and the Federal Nursing Home Reform Amendments (FNRA), 42 U.S.C. § 1396r et seq.
The action was brought by the daughter of a resident against a nursing home operated by Allegheny County. The complaint contained two counts, one for wrongful death, the other for survival. It alleged that as a result of the nursing home’s failure to render proper care to her mother, her mother developed decubitus ulcers, became malnourished, and eventually developed sepsis which plaintiff alleged caused her mother’s death.
The case was dismissed pursuant to Fed.R.Civ.P. 12(b)(6) after the nursing home filed a motion to dismiss. The District Court held that there was no private right of action under OBRA and FNRA. Plaintiff appealed to the Third Circuit Court of Appeals.
In finding that there was a private right of action under FNRA, the Third Circuit cited Blessing v. Freestone, 520 U.S. 329 (1997) for the three factors to determine whether a statute conveys a federal right upon an individual. The Third Circuit explained these factors to be 1) whether Congress intended that the statutory provision in question benefits the plaintiff; 2) whether the right asserted was so “vague and amorphous” that its enforcement would strain judicial competence, and 3) whether the statute unambiguously imposes a binding obligation on the states. Noting that all factors had been met, the Third Circuit then inquired into whether the statutes in question unambiguously conferred a substantive right in accordance with the Supreme Court’s decision in Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).
In addressing this issue, the Third Circuit noted that the provisions of FNHRA contained numerous references to rights created and is clearly phrased in terms of persons benefitted, and therefore, held that an action against a county operated nursing home could proceed under 42 U.S.C. § 1983 for violations of OBRA and FNHRA.
Noting that plaintiff had met her burden, the Third Circuit noted that the burden then shifted to defendant to rebut the presumption of an enforceable right under § 1983. However, defendant failed to argue that Congress precluded enforcement of rights conferred by FNHRA, and the Third Circuit’s assessment of the Medicaid Act uncovered no evidence of congressional intent to preclude enforcement of these rights.
by Mark Bauman | Jun 17, 2023 | Legal News, Medical Malpractice
The Pennsylvania Supreme Court recently upheld a law that bars wrongful birth lawsuits. In the underlying case, Sernovitz v. Dershaw, the plaintiffs filed suit against Mrs. Sernovitz’s treating physicians for failure to inform her of circumstances that would have otherwise led to her having an abortion.
The plaintiffs were both of Ashkenazi Jewish heritage, which placed their unborn baby at an increased risk of suffering from a genetic disorder known as familial dysautonomia. During her prenatal care, Mrs. Sernovitz underwent genetic testing, which showed that she was a carrier of the gene mutation; however, her treating physicians negligently misinformed her about the test results and told her that she was not a carrier. Mrs. Sernovitz gave birth to a son who suffered from familial dysautonomia. After the birth of her son, the plaintiffs learned that they were both carriers of the gene mutation. If they were correctly informed of the test results, further testing would have been conducted and they would have learned of the baby’s condition while still in utero. Had the plaintiffs known of the baby’s condition while still in utero, Mrs. Sernovitz would have had an abortion.
The plaintiffs filed suit against the healthcare providers asserting claims for wrongful birth and seeking damages for medical expenses and emotional distress. Act 47 of 1988, however, stood in their way as it bars claims for wrongful birth. Plaintiffs argued that the Act was unconstitutional in its entirety. Specifically, plaintiffs argued that the Act’s original purpose was changed during its passage through the General Assembly, it contained more than one subject including regulations regarding criminal proceedings, and in its final form, it was not considered on three days in each House. The defendants filed preliminary objections, which were granted by the court of common pleas. The trial court found that the plaintiffs’ claims were barred by the Act and their complaint was dismissed. The Superior Court reversed the trial court’s decision. In doing so, the court found that the Act violated the single-subject rule and that there was no unifying topic to which all aspects of the Act pertained.
On appeal to the Pennsylvania Supreme Court, defendants argued that the doctrine of laches should be applied to find the plaintiffs’ claims inequitable due to an unreasonable delay in challenging the Act.[1] At the outset, the Court disagreed with the Superior Court’s ruling that the Act violated the single-subject rule. In doing so, the Court quoted a prior ruling and stated that “it would be arbitrary to preserve one set of provisions germane to one topic, and invalidate the reminder of the bill[.]”[2]
In determining whether the doctrine of laches applied to the Sernovitz’s claims, the Court considered the delay in challenging the Act, as well as the defendants’ public policy argument. First, the Court considered the defendants’ argument that the 22-year delay in challenging the Act rendered plaintiffs’ claims inequitable under the circumstances. The plaintiffs argued that the defendants’ laches argument was waived since they did not raise it at the trial or appellate court level. The Court agreed with the plaintiffs, finding that the doctrine of laches is an affirmative defense that should be raised in a responsive pleading. Further, the Court found that the doctrine did not apply to claims such as this “in which tort plaintiffs, who may have been minor children or not yet born at the time of the legislation under review became law, institute an otherwise timely action after suffering a private injury.”[3] However, the Court made a distinction in this case as opposed to ordinary laches defenses. It noted that, in an ordinary laches scenario, the plaintiff’s claim is otherwise valid and the defendant bears the burden to demonstrate that enforcing the plaintiff’s rights would be inequitable under the circumstances. In this case, the plaintiffs’ claims were otherwise presumptively invalid as Act 47 clearly precluded wrongful birth claims. Therefore, there was a strong presumption of validity and the plaintiffs, as challengers, had the burden in regard to their allegation of unconstitutionality.
Next, the Court turned to the public policy argument that allowing the plaintiffs’ claims to proceed would invalidate Act 47, which the public had relied upon in criminal cases for over 20 years. The Court held that, “[i]nvalidating all of these provisions retroactive to 1988 would be unduly disruptive to the orderly administration of justice in Pennsylvania.”[4] Ultimately, without addressing whether the Act violated the single-subject rule, the Court concluded that the substantially delayed nature of the plaintiffs’ challenge rendered the legislation immune to attack. Accordingly, the Superior Court’s ruling was reversed and the trial court’s order dismissing the plaintiffs’ amended complaint as barred by Act 47 was reinstated.
[1] Sernovitz v. Dershaw, No. 123 MAP 2014 (2015).
[2] City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A.2d 566 (2003).
[3] Sernovitz, No. 123 MAP 2014, 13 (2015).
[4] Id. at 17.
by Mark Bauman | Jun 16, 2023 | Legal News, Nursing Home Litigation
The Pennsylvania House of Representatives recently approved an amendment to the Medical Care Availability and Reduction of Error (MCARE) Act, which would limit the amount of punitive damages that could be awarded in lawsuits involving medical malpractice in nursing homes. The proposed legislation caps punitive damages at 200 percent of the compensatory damages awarded in actions against personal care homes, assisted living communities, long-term care nursing facilities, home care agencies, and hospices; however, this limit would not apply if there are allegations of intentional misconduct. The purpose of the legislation is to ensure the financial strength of Pennsylvania nursing home facilities by not subjecting them to “jackpot punitive damages awards.” The next step in enacting the proposed legislation into law is approval from the Pennsylvania Senate.
See PA H.B. 1907.
by Mark Bauman | Jun 16, 2023 | Legal News, Medical Malpractice
The following is an update to an earlier posting, found HERE.
In an unreported memorandum opinion, Judge J. Brian Johnson denied a defendant physician’s motion for summary judgment and found that the defendant physician owed a duty of care to a non-patient where the disease at issue was potentially deadly absent medical intervention and is inherited 50% of the time by the patient’s children. In Polaski v. Whitson,[1] the decedent’s estate brought a medical malpractice suit against the defendant physician, Dr. Whitson, who treated the decedent’s father, Raymond Polaski. In 2008, Mr. Polaski underwent an electrocardiogram (EKG) as part of a physical conducted by Dr. Whitson. Plaintiffs argued that the EKG should have revealed certain results that would have led Dr. Whitson to order additional testing, which would have likely uncovered that Mr. Polaski suffered from hypertrophic cardiomyopathy. Hypertrophic cardiomyopathy is the heredity condition that ultimately caused the death of the decedent, Mr. Polaski’s son. Plaintiffs argued that, had Dr. Whitson ordered additional testing and diagnosed Mr. Polaski with hypertrophic cardiomyopathy, he would have also informed Mr. Polaski of the need to inform his children, including the decedent, regarding the risk of inheriting the genetic condition from Mr. Polaski.
In reaching his decision, Judge Johnson looked to the following factors enumerated in Althaus ex rel. Althaus v. Cohen:[2] (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. The court also compared prior appellate court cases including Matharu v. Muir[3] and Seebold v. Prison Health Services[4], and found that a duty of care is owed to non-patients “as the risk of harm to those third persons increases in severity and foreseeability and the class of third persons falling within the potential orbit of harm becomes increasingly focused, foreseeable and identifiable.” In doing so, the court found that Dr. Whitson owed a duty to advise the decedent, a non-patient who suffered from hypertrophic cardiomyopathy, stating that “the nature of the risk is highly foreseeable in the medical community and it is essential that the information be disseminated by the physician.”
The ruling in Polaski, as well as the appellate court cases, demonstrates the case-by-case nature of the determination regarding third-party beneficiaries and a duty of care owed by a defendant physician. It is unclear whether the appellate courts will impose a definitive rule in this regard, but in the meantime, a duty of care owed by a physician to a non-patient will likely be imposed when the risk of harm is foreseeable and identifiable.
[1] Court of Common Pleas, Lehigh County No. 2011-C-2583 (memorandum opinion, June 30, 2015).
[2] 562 Pa. 547 (2000) (holding that a psychiatrist does not owe a duty of care to non-patient parents of a child patient who the child accused of sexual molestation and later rescinded).
[3] 86 A.3d 250 (Pa. Super. Ct. 2014).
[4] 618 Pa. 632 (2012).
by Mark Bauman | Jun 15, 2023 | Legal News, Nursing Home Litigation
The New Jersey Supreme Court recently held that the discovery rule – which can delay the accrual date of a medical malpractice action until a party discovers or should have discovered an actionable claim – is not a license for plaintiff’s attorneys to endlessly search through their client’s medical records prior to filing suit.
A 78 year old gentleman was recuperating at a rehabilitation facility in New Jersey. On April 15, 1999, fearing nurses were not suctioning his lungs as they should have, this gentleman passed a note to a friend asking that he be transferred out of this rehab facility. The next day the transfer to another rehab facility was arranged, but this gentleman died the next day.
The administrator of this gentleman’s estate did not file a medical malpractice suit until April 26, 2001, nine days after the two year statute of limitations expired. The administrator followed his attorney’s advice that he should obtain the medical records prior to filing suit. Lawyers for the rehab centers argued that the Complaint should be dismissed because the administrator should have known about a possible claim based on the note two days prior to death. The administrator’s attorney argued that his client needed time to consult the medical records and as such the discovery rule should apply. The administrator’s claims against the initial rehab center where his friend was residing were dismissed. Subsequent argument is necessary to determine the status of claims against the rehab center where the gentleman was transferred.
by Mark Bauman | Jun 15, 2023 | Legal News, Nursing Home Litigation
In the case of Menno Haven, Inc. v. The Franklin County Board of Assessment and Revision of Taxes, No. 1051 C.D. 2006 (Pa. Cmwlth. 2007) two skilled nursing care centers lost their tax exempt status because they did not function as purely public charities. Menno Haven, Inc. and Menno Haven Penn Hall, Inc. (collectively “Menno Haven”) operate continuing care retirement communities offering independent living, assisted living, and skilled nursing care levels. Menno Haven’s skilled nursing care facilities were considered tax exempt since their construction in 1967. It was determined by the Franklin County Board of Assessment and Revision of Taxes (the “Board”) that Menno Haven’s skilled nursing facilities were, in fact, taxable entities. The Board’s October 18, 2004 decision was affirmed by the trial court. Thereafter, Menno Haven appealed to the Commonwealth Court of Pennsylvania (the “Court”) which also affirmed.
The Court agreed that Menno Haven did not qualify for exemption because it was not a “purely public charity” as required by the Pennsylvania Constitution. Specifically, an entity must be a purely public charity in order to qualify for statutory tax exemption. Accordingly, there are two criteria for tax exempt eligibility. First, an entity must show that it is a “purely public charity.” Second, an entity must meet the statutory requirements for exemption set forth in § 5 of Act 55 (10 P.S. § 375). The second criteria will not be considered without satisfaction of the first criteria.
Whether an entity operates as a purely public charity is determined by satisfaction of a five-part test as set forth by the Pennsylvania Supreme Court in Hospital Utilization Project v. Commonwealth, 487 A.2d 1306 (Pa. 1985). According to the five-part “HUP test”, a purely public charity is an entity that:
- advances a charitable purpose;
- donates or renders gratuitously a substantial portion of its services;
- benefits a substantial and indefinite class of persons who are legitimate objects of charity;
- relieves government of some of its burden; and
- operates entirely free from private profit motive.
Id, at 1317. The Court ruled that the trial court correctly determined that the second and third elements of the HUP test were not satisfied by Menno Haven.
The Court reasoned that Menno Haven did not donate or render gratuitously a substantial portion of its services for three reasons. Menno Haven charged a sizable entrance fee to its independent living residents which the Court felt was an effort to collect in advance for future services that might be rendered without compensation to residents at the skilled nursing level. Although Menno Haven was not contractually bound to transfer community residents to its skilled nursing facilities and they did so regardless of ability to pay, the Court felt that such transfers were made out of a sense of obligation rather than one of charity or community service. Finally, the Court determined that a very small portion of Day One Medicaid eligible individuals were admitted from the community at large (between 2000 and 2004 only 15 of 179 skilled nursing residents). These factors were considered within the totality of the circumstances and the fact that Menno Haven lost money caring for residents on Medicaid was outweighed.
According to the Court, Menno Haven did not benefit a substantial and indefinite class of persons who were legitimate objects of charity. The Court found that people generally gained access to the community by meeting certain financial requirements, because the person was Medicare eligible, or by chance the person applied for occupancy at a time when Menno Haven was accepting Day One Medicaid eligible individuals from outside the existing residential community. The Court found that it was not typical for Menno Haven to extend its services gratuitously to the community at large but rather preferred elderly residents who possessed the ability to pay. For these reasons the Court upheld the prior rulings that Menno Haven was not a purely public charity and therefore did not consider statutory compliance with Act 55. Litigation concerning the tax exempt status of Menno Haven’s independent living and assisted living facilities is ongoing.
