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Elder Law

[08/30] HCM Healthcare, Inc. v. California Ins. Guarantee Ass'n
In a residential nursing facility's suit against California Insurance Guarantee Association (CIGA) for breach of contract and for violating the Insurance Code for refusing to provide plaintiffs with defense counsel and indemnification for underlying lawsuits for elder abuse, judgment in favor of defendant is affirmed where: 1) as a creature of statute, and not of contract, in some instances CIGA may not be responsible for an insured loss to the same extent as the insolvent insurer might be under the terms of its insurance contract; and 2) Pennsylvania's liquidation order imposed a June 30, 2005 deadline for filing against an insurer and because plaintiff did not meet the deadline, CIGA may not honor their claims.

[08/09] Clark v. Superior Court
In senior citizens' suit against an insurance company, claiming deceptive business practices relating to the purchase and sale of annuity contracts, and claiming that statutory law entitled them to a trebling of the award, court of appeal's grant of plaintiffs' petition for a writ of mandate directing the trial court to enter a new order denying defendant's motion for judgment on the pleadings is reversed as, because Civil Code section 3345 authorizes the trebling of a remedy only when it is in the nature of a penalty, and because restitution under the unfair competition law is not a penalty, an award of restitution under the unfair competition law is not subject to section 2234's trebling provision.

[07/12] Das v. Bank of Am. N.A.
In a daughter's suit for elder abuse against Bank of America, claiming that the bank failed to report financial abuse involving her father and engaged in other misconduct, including predatory lending, trial court's dismissal of the complaint is affirmed where: 1) as section 15610.30(b)'s 2008 amendments to the statutory scheme were substantive, rather than procedural, and the Legislature did not state that the amendments were retroactive in effect, they are inapplicable to plaintiff's claims; 2) plaintiff's allegations regarding defendant's failure to comply with the statutory reporting duty state no claim against defendant; 3) the demurrers to plaintiff's remaining claims were properly sustained; and 4) there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend.

[05/06] FAL-Meridian, Inc. v. US Dep't of Health & Human Serv.
A nursing home's petition to set aside a final decision by the Department of Health and Human Services, that imposed a civil penalty of $7,100 for having violated a regulation under the Medicare and Medicaid provisions of the Social Security Act, is denied as the nursing home failed to tender evidence that would show that it had done everything possible to minimize the risk of an accident to the deceased resident.

[02/05] Villano v. Waterman Convalescent Hosp., Inc.
In plaintiff's action against a convalescent hospital claiming she was admitted without her consent, judgment of the trial court is affirmed where, although a stipulated judgment is appealable, plaintiff cannot show that allegedly erroneous rulings were prejudicial.

[12/22] Massey v. Mercy Med. Center Redding
In plaintiff's negligence action against a nurse and the hospital that employed the nurse alleging that he sustained injury after falling from a walker because the nurse placed the plaintiff on the walker and left him unattended, judgment of the trial court is reversed in part where: 1) the question of nurse's alleged negligence for the fall poses a question of common knowledge, and therefore does not require expert opinion testimony; and 2) trial court's judgment that denied plaintiff's attempt to amend his complaint to add causes of action for battery, fraud and elder abuse is affirmed.

[12/21] Grace Healthcare of Benton v. US Dept. of Health & Hum. Servs.
In a petition for review of a civil monetary penalty imposed by the Secretary of the Department of Health and Human Services on petitioner nursing home for an "immediate jeopardy" violation of 42 C.F.R. section 483.13(c), which required nursing homes to thoroughly investigate all allegations of resident neglect or abuse, including injuries of unknown sources, the petition is granted where the Secretary's finding of the likely harm necessary to warrant an immediate-jeopardy-level finding was based on pure speculation and not supported by substantial evidence in the administrative record as a whole.

[12/01] Yarick v. Pacificare of California
In plaintiff-estate's suit against defendant health care providers and health care benefits providers alleging that the events resulting in decedent's death happened because of the financial pressures and incentive that arose from the care providers' contracts with the defendants, trial court's order sustaining defendants' demurrer is affirmed as: 1) federal law expressly preempts applications of state laws where standards for Medicare Advantage plans are established pursuant to the Medicare law; and 2) to the extent the plaintiff seeks to allege causes of action based on state common law concepts of duty independent of the Health and Safety Code provisions cited, those common law causes of action are preempted.

[11/30] Holbert v. Fremont Inv. & Loan
In plaintiff's suit against a financial lender, dismissal of the complaint is affirmed where: 1) defendant was not required to comply with the Home Ownership and Equity Protection Act of 1994 (HOEPA), which applies when the finance charges imposed on a loan exceed a certain threshold; 2) two charges imposed on plaintiff, one to pay off a preexisting debt to another lender and another to satisfy a prepayment penalty on a prior home loan, were not finance charges within the meaning of HOEPA; 3) plaintiff has not established a claim against defendant for unfair business practices; and 4) while plaintiff may have a viable claim against her loan broker for financial elder abuse based on various misrepresentations made during the loan process, she failed to link that claim to defendant, who is as much a victim of the broker's misrepresentations as plaintiff.

[10/29] People v. Medlin
An order finding defendants-nurses factually innocent of felony charges of dependent adult abuse likely to produce great bodily harm or death and directing destruction of their records is reversed as, notwithstanding their acquittals, the evidence provided reasonable cause to believe that respondents committed the offense of which they were charged.

[08/13] Wood v. Santa Monica Escrow Co.
Trial court judgment denying plaintiff's motion for attorney's fees is affirmed where the trial and appeal are a single proceeding and defendant was still the overall prevailing party after plaintiff dismissed its suit against it, despite plaintiff's success on an appeal of the award of attorney's fees.

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Health Law

[09/03] Campbell v. Davol, Inc.
In plaintiff's product liability suit against defendants claiming that a hernia patch that was surgically placed in her abdomen following breast reconstructive surgery was defective, district court's grant of summary judgment in favor of the defendants is affirmed where: 1) district court did not err in granting summary judgment in favor of the defendants with respect to the issue of successor liability; 2) district court did not err in granting summary judgment on the post-sale failure to warn claim as there was no contractual relationship to provide services to customers who purchased the hernia patch from the manufacturer; and 3) there is no err in finding plaintiff's claims against defendant were barred by Texas law.

[09/02] Conservatorship of the Person & Estate of Carol K.
Trial court's judgment ordering a 62-year-old woman to be placed in a locked skilled nursing facility as the least restrictive placement, after the jury found the woman gravely disabled beyond a reasonable doubt, is affirmed where: 1) the issue is not moot because "collateral consequences remain even after the conservatorship has been terminated"; and 2) substantial evidence supports a finding that the woman is gravely disabled and cannot obtain food, clothing, or shelter.

[08/31] Florida Dep't of State v. Mangat
Judgment of the circuit court, finding that the ballot summary for Amendment 9, for creating a new section related to health care services in article I of the Florida Constitution, does not meet the requirements of section 101.161 and therefore may not be included on the November 2010 ballot is affirmed as, the ballot language put forth by the party proposing the constitutional amendment contains misleading and ambiguous language and the only recourse is to strike the proposed amendment from the ballot.

[08/31] Jones v. Astrue
In plaintiff's appeal from the district court's judgment upholding the Commissioner of Social Security's denial of her application for disability insurance benefits and supplemental security income, the order is affirmed where: 1) the ALJ had no need to contact plaintiff's treating physician because there was no ambiguity to resolve in her report, and the report contained all the necessary information, including the results of diagnostic testing; 2) the ALJ appropriately considered plaintiff's subjective complaints of pain under Polaski; and 3) substantial evidence on the record as a whole supported the ALJ's decision.

[08/30] Luo v. Mikel
In an action alleging serious injury sustained during an automobile accident within the meaning of New York Insurance Law section 5102(d), summary judgment for defendants is affirmed in part where the district court's exercise of jurisdiction was proper. However, the order is vacated in part where, taken together with plaintiff's subjective evidence as to the impact of the injury on her functioning, plaintiff's medical evidence was sufficient to raise a question of fact issue as to serious injury pursuant to N.Y. Ins. Law section 5104(a).

[08/30] In re R.R.
In dependency proceedings, juvenile court's order declaring petitioner-father's daughter a person described by Welfare and Institutions Code section 300(b) based on the father's past and current drug use, is affirmed where: 1) the juvenile court did not err in denying father's motion to quash subpoena of his hospitalization; 2) any error in not hearing the motion to quash was harmless because as a matter of substantive law the motion would have been denied as father's hospital records were admissible; 3) father's claim that his right to privacy was violated by dissemination of his medical records is rejected; 4) substantial evidence supported the finding that the daughter was a person described by section 300; and 5) juvenile court did not abuse its discretion by ordering monitored visits.

[08/27] County of Butte v. California Emergency Med. Serv. Auth., Inc.
In a county's suit against the Emergency Medical Services Authority (Authority), seeking declaratory relief and a writ of mandate, arising from the county's designation of a local EMS agency to administer some of the requirements of the EMS Act, while reserving for another local agency all of the remaining statutory powers and duties not covered by the agreement, trial court's grant of Authority's motion for summary judgment is affirmed where: 1) the plain language of the EMS Act precluded Butte County from creating a bifurcated local agency system; 2) the Authority has the statutory authority to review a local EMS agency's creation of an exclusive operating area (EOA) as part of the transportation portion of the local EMS plan, regardless of whether the EOA was created through a competitive process or grandfathering, and then to reject the local EMS plan if it is not "concordant and consistent with applicable guidelines or regulations, or both the guidelines and regulations, established by the Authority"; 3) the Authority's interpretation of the "manner and scope" language of section 1797.224 is a generally applicable policy subject to the rulemaking procedures of the APA, and because the Authority did not comply with those procedures, this interpretative regulation is void and not entitled to any deference; and 4) the fact that the Authority relied on an invalid regulation in rejecting the EOAs does not require reversal as the Authority did not abuse its discretion by rejecting the designation of EOAs based on lack of information provided by Nor-Cal EMS.

[08/27] Garcia v. Gomez
In plaintiff's suit against a hospital and a treating physician for the death of plaintiff's mother from a pulmonary embolism following surgery, court of appeals' affirmance of trial court's dismissal of the suit and denial of defendants' motion for attorney's fees is reversed and remanded where: 1) there is some evidence of reasonable attorney's fees and some evidence that the physician incurred attorney's fees; 2) section 74.351(b) mandates an award of attorney's fees and costs, when expert reports are not served timely.

[08/27] Marks v. St. Luke's Episcopal Hosp.
In plaintiff's suit against a hospital, claiming that its negligence contributed to cause his fall from a hospital bed, court of appeals' affirmance of trial court's dismissal of the suit is affirmed where: 1) because the provision of a safe hospital bed was an inseparable part of the health care services provided during plaintiff's convalescence from back surgery, his cause of action for injuries allegedly caused by the unsafe bed is a health care liability claim under article 4590i; and 2) trial court did not abuse its discretion in refusing plaintiff's request for additional time to file the requisite expert report.

[08/27] EEOC v. UPS Supply Chain Sols.
In an action by the Equal Employment Opportunity Commission under the Americans with Disabilities Act (ADA) alleging that UPS Supply Chain Solutions failed to provide reasonable accommodations for an employee's deafness because UPS did not provide him with a sign language interpreter for certain staff meetings, disciplinary sessions, and training, summary judgment for defendant is reversed where: 1) there was a genuine issue of fact regarding whether the agendas, contemporaneous notes, and written summaries contained information sufficient to enable a person reading those documents to enjoy the same benefits and privileges of attending and participating in the weekly meetings as other employees; and 2) there was an issue of fact regarding whether UPS was aware or should have been aware that certain modifications were ineffective as to the employee.

[08/27] Cedillo v. Sec'y of Health & Human Serv.
In plaintiff's suit brought under the National Childhood Vaccine Injury Act of 1986, claiming a link between childhood vaccines and autism, Court of Federal Claims' affirmance of a Special Master's denial of petitioners' claim for compensation on behalf of their daughter is affirmed as, after careful review of the Special Master's decision, the court finds that it is rationally supported by the evidence, well-articulated, and reasonable.

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