Med Mal News

Florida Jury Clears Hospital That 'Deported' Patient

A Florida jury has found a South Florida hospital not guilty of false imprisonment after it repatriated one of its longtime patients, an illegal immigrant to the United States, to his native Guatemala. The patient, Luis Jimenez, had been involved in an auto accident that left him with severe brain damage. The drunk driver who hit the vehicle Jimenez was riding in had little insurance, so the victims of the accident were left with almost nothing in compensation. Jimenez's condition was eventually stabilized, and he could have been discharged to an appropriate care facility but because he was uninsured, nursing homes were unwilling to accept him. With no appropriate discharge plan available, Jimenez remained at Martin Memorial Medical Center for several years, toting up more than $1 million in unpaid bills.

The hospital then pursued an unusual solution to its ongoing problem: It obtained an order in 2003 from a Florida probate judge allowing it to privately repatriate its patient. Once the order was issued, the hospital chartered a plane and flew Jimenez to Guatemala. The order was later revoked on the ground that the probate judge did not have proper jurisdiction to decide the immigration matter, nor to give Martin Memorial the authority to privately deport Jimenez ' actions such as these were the sole province of the federal government and its immigration control system.

After Jimenez was moved to his elderly mother's home in Guatemala, he, through his appointed guardian, sued Martin Memorial for false imprisonment, charging the hospital with moving Jimenez to Guatemala ' a country without the proper resources to care for him ' so that they would no longer have to pay for his care. The jury was instructed that it was res judicata that Jimenez had been unlawfully detained and was deprived of his liberty rights, two of the prerequisites for a finding of actionable false imprisonment. The jury, however, concluded that, under the circumstances, the hospital had not acted unreasonably. As this was also one of the elements of a false imprisonment charge, the Martin Memorial was found not liable.

New Hampshire's Budget Gambit Thwarted

A July 29 decision in New Hampshire's Belknap County Superior Court has put on hold the State's legislature's attempt to transfer $65 million in surplus medical malpractice insurance funds from the New Hampshire Medical Malpractice Joint Underwriting Association to the state's general fund. In Tuttle v. New Hampshire Medical Malpractice Joint Underwriting Association, Justice Kathleen McGuire issued an order prohibiting the transfer, which legislation authorized to take place before July 31.

Seeking to locate funds to pay for the State's health care programs, New Hampshire's legislature in June enacted a law authorizing the transfer of up to $110 million in the joint underwriting association's surplus insurance funds. The plaintiffs in Tuttle were hospitals and medical personnel insured by insurance companies that are members of the New Hampshire Medical Malpractice Joint Underwriting Association, a body created by the New Hampshire Insurance Department. According to Justice Kathleen McGuire's order, the new law violated the takings clauses of both the State and U.S. constitutions. In addition, because the association is not part of New Hampshire state government, McGuire found that the transfer would violate state and federal constitutional protections for private contracts.

The State has vowed to appeal the decision to the New Hampshire Supreme Court, the state's only appellate court. However, Kevin Fitzgerald, a litigation and dispute resolution partner at Nixon Peabody who helped represent the health care providers, says a successful state appeal is unlikely in light of the multiple grounds upon which Judge McGuire ruled the legislation unlawful. “For the state to be successful, the task is higher,” Fitzgerald said. “We feel good based on very thorough, thoughtful analysis of multiple legal issues that the judge [issued].”

Some Nursing Home Patients May Sue for Civil Rights Violations

According to a recent Third Circuit Court of Appeals Decision, the Federal Nursing Home Reform Amendments (FNHRA) give residents of county-run nursing homes the right to bring civil rights claims under Section 1983 to challenge the quality of their treatment. In Grammar v. John J. Kane Regional Centers, U.S. Circuit Judge Richard L. Nygaard concluded, “The language used throughout the FNHRA is explicitly and unambiguously rights-creating ' . These provisions make clear that nursing homes must provide a basic level of service and care for residents and Medicaid patients.” The decision revives a suit brought by the administratrix of the estate of an 80-year-old woman who allegedly died at an Allegheny County, PA-operated nursing home as a result of neglect, malnourishment and bed sore-related sepsis.

The majority noted that, prior to the enactment of FNHRA, only two rarely used sanctions were available against nursing homes that failed to comply with federal Medicaid participation requirements: the secretary of the Department of Health and Human Services or the states could decertify the facilities or the states could deny payment for new admissions for up to 11 months. The FMHRA amendments to the Medicare Act were passed in 1987 as part of the Omnibus Budget Reconciliation Act. The goal of the amendments was to improve the quality of care provided in state- and county-run nursing homes. In determining that the amendments created a private right of action for patients, the majority in Grammar cited to the fact that the 1987 legislation give residents of affected nursing homes the rights to: 1) choose their attending physicians; 2) be fully informed about their care and treatment; 3) be free from physical and mental abuse; 4) have their grievances heard; and 5) enjoy privacy and confidentiality. In addition, under the law, stated the majority, nursing homes “are required to care for residents in a manner promoting quality of life, provide services and activities to maintain the highest practicable physical, mental and psychosocial well-being of residents, and conduct comprehensive assessments of their functional abilities.” The court also found that
“[t]he repeated use of the phrases 'must provide,' 'must maintain' and 'must conduct' are not unduly vague or amorphous such that the judiciary cannot enforce the statutory provisions.”

In his dissent, Judge William H. Stafford Jr. of the Northern District of Florida wrote that the Medicare Act is a piece of Spending Clause legislation and that such laws “rarely confers upon funding beneficiaries the right to bring private actions before thousands of federal- and state-court judges against funding recipients.” Judge Stafford, in disagreeing with the majority, said he believed that “Congress did not speak with a 'clear voice' or manifest an 'unambiguous intent' to provide a basis for private enforcement of funding requirements under Section 1983.”

Because of Inadequate Health Care, Feds Tell State to Cut Prison Population

In a 184-page opinion, a three-judge Federal District Court panel ordered California to reduce its prison population by 40,000 inmates within the next two years. The State has been grappling with prison overpopulation for decades, and numerous fixes to the problem of inadequate health care for California's prisoners have been tried, including the declaration of a state of emergency by Governor Arnold Schwarzenegger. However, the judges who decided the Coleman v. Schwarzenegger case found that “[t]he state of emergency declared by Governor Schwarzenegger almost three years ago continues to this day, California's prisons remain severely overcrowded, and inmates in the California prison system continue to languish without constitutionally adequate medical and mental health care.”

During this year's state budget negotiations, Gov. Schwarzenegger pushed a plan to reduce the number of inmates by 27,000 by mid-2010, primarily by allowing some offenders to serve their sentences in home confinement and by easing parole restrictions. The majority of the legislators would have none of it, however, and they worsened the situation by cutting the correction system's budget by $1.2 billion. Thus, according to the Coleman judges, “The convergence of tough-on-crime policies and an unwillingness to expend the necessary funds to support the population growth has brought California's prisons to the breaking point.” They gave the State 45 days to submit a plan that will accomplish the goals of their order.

Florida Jury Clears Hospital That 'Deported' Patient

A Florida jury has found a South Florida hospital not guilty of false imprisonment after it repatriated one of its longtime patients, an illegal immigrant to the United States, to his native Guatemala. The patient, Luis Jimenez, had been involved in an auto accident that left him with severe brain damage. The drunk driver who hit the vehicle Jimenez was riding in had little insurance, so the victims of the accident were left with almost nothing in compensation. Jimenez's condition was eventually stabilized, and he could have been discharged to an appropriate care facility but because he was uninsured, nursing homes were unwilling to accept him. With no appropriate discharge plan available, Jimenez remained at Martin Memorial Medical Center for several years, toting up more than $1 million in unpaid bills.

The hospital then pursued an unusual solution to its ongoing problem: It obtained an order in 2003 from a Florida probate judge allowing it to privately repatriate its patient. Once the order was issued, the hospital chartered a plane and flew Jimenez to Guatemala. The order was later revoked on the ground that the probate judge did not have proper jurisdiction to decide the immigration matter, nor to give Martin Memorial the authority to privately deport Jimenez ' actions such as these were the sole province of the federal government and its immigration control system.

After Jimenez was moved to his elderly mother's home in Guatemala, he, through his appointed guardian, sued Martin Memorial for false imprisonment, charging the hospital with moving Jimenez to Guatemala ' a country without the proper resources to care for him ' so that they would no longer have to pay for his care. The jury was instructed that it was res judicata that Jimenez had been unlawfully detained and was deprived of his liberty rights, two of the prerequisites for a finding of actionable false imprisonment. The jury, however, concluded that, under the circumstances, the hospital had not acted unreasonably. As this was also one of the elements of a false imprisonment charge, the Martin Memorial was found not liable.

New Hampshire's Budget Gambit Thwarted

A July 29 decision in New Hampshire's Belknap County Superior Court has put on hold the State's legislature's attempt to transfer $65 million in surplus medical malpractice insurance funds from the New Hampshire Medical Malpractice Joint Underwriting Association to the state's general fund. In Tuttle v. New Hampshire Medical Malpractice Joint Underwriting Association, Justice Kathleen McGuire issued an order prohibiting the transfer, which legislation authorized to take place before July 31.

Seeking to locate funds to pay for the State's health care programs, New Hampshire's legislature in June enacted a law authorizing the transfer of up to $110 million in the joint underwriting association's surplus insurance funds. The plaintiffs in Tuttle were hospitals and medical personnel insured by insurance companies that are members of the New Hampshire Medical Malpractice Joint Underwriting Association, a body created by the New Hampshire Insurance Department. According to Justice Kathleen McGuire's order, the new law violated the takings clauses of both the State and U.S. constitutions. In addition, because the association is not part of New Hampshire state government, McGuire found that the transfer would violate state and federal constitutional protections for private contracts.

The State has vowed to appeal the decision to the New Hampshire Supreme Court, the state's only appellate court. However, Kevin Fitzgerald, a litigation and dispute resolution partner at Nixon Peabody who helped represent the health care providers, says a successful state appeal is unlikely in light of the multiple grounds upon which Judge McGuire ruled the legislation unlawful. “For the state to be successful, the task is higher,” Fitzgerald said. “We feel good based on very thorough, thoughtful analysis of multiple legal issues that the judge [issued].”

Some Nursing Home Patients May Sue for Civil Rights Violations

According to a recent Third Circuit Court of Appeals Decision, the Federal Nursing Home Reform Amendments (FNHRA) give residents of county-run nursing homes the right to bring civil rights claims under Section 1983 to challenge the quality of their treatment. In Grammar v. John J. Kane Regional Centers, U.S. Circuit Judge Richard L. Nygaard concluded, “The language used throughout the FNHRA is explicitly and unambiguously rights-creating ' . These provisions make clear that nursing homes must provide a basic level of service and care for residents and Medicaid patients.” The decision revives a suit brought by the administratrix of the estate of an 80-year-old woman who allegedly died at an Allegheny County, PA-operated nursing home as a result of neglect, malnourishment and bed sore-related sepsis.

The majority noted that, prior to the enactment of FNHRA, only two rarely used sanctions were available against nursing homes that failed to comply with federal Medicaid participation requirements: the secretary of the Department of Health and Human Services or the states could decertify the facilities or the states could deny payment for new admissions for up to 11 months. The FMHRA amendments to the Medicare Act were passed in 1987 as part of the Omnibus Budget Reconciliation Act. The goal of the amendments was to improve the quality of care provided in state- and county-run nursing homes. In determining that the amendments created a private right of action for patients, the majority in Grammar cited to the fact that the 1987 legislation give residents of affected nursing homes the rights to: 1) choose their attending physicians; 2) be fully informed about their care and treatment; 3) be free from physical and mental abuse; 4) have their grievances heard; and 5) enjoy privacy and confidentiality. In addition, under the law, stated the majority, nursing homes “are required to care for residents in a manner promoting quality of life, provide services and activities to maintain the highest practicable physical, mental and psychosocial well-being of residents, and conduct comprehensive assessments of their functional abilities.” The court also found that
“[t]he repeated use of the phrases 'must provide,' 'must maintain' and 'must conduct' are not unduly vague or amorphous such that the judiciary cannot enforce the statutory provisions.”

In his dissent, Judge William H. Stafford Jr. of the Northern District of Florida wrote that the Medicare Act is a piece of Spending Clause legislation and that such laws “rarely confers upon funding beneficiaries the right to bring private actions before thousands of federal- and state-court judges against funding recipients.” Judge Stafford, in disagreeing with the majority, said he believed that “Congress did not speak with a 'clear voice' or manifest an 'unambiguous intent' to provide a basis for private enforcement of funding requirements under Section 1983.”

Because of Inadequate Health Care, Feds Tell State to Cut Prison Population

In a 184-page opinion, a three-judge Federal District Court panel ordered California to reduce its prison population by 40,000 inmates within the next two years. The State has been grappling with prison overpopulation for decades, and numerous fixes to the problem of inadequate health care for California's prisoners have been tried, including the declaration of a state of emergency by Governor Arnold Schwarzenegger. However, the judges who decided the Coleman v. Schwarzenegger case found that “[t]he state of emergency declared by Governor Schwarzenegger almost three years ago continues to this day, California's prisons remain severely overcrowded, and inmates in the California prison system continue to languish without constitutionally adequate medical and mental health care.”

During this year's state budget negotiations, Gov. Schwarzenegger pushed a plan to reduce the number of inmates by 27,000 by mid-2010, primarily by allowing some offenders to serve their sentences in home confinement and by easing parole restrictions. The majority of the legislators would have none of it, however, and they worsened the situation by cutting the correction system's budget by $1.2 billion. Thus, according to the Coleman judges, “The convergence of tough-on-crime policies and an unwillingness to expend the necessary funds to support the population growth has brought California's prisons to the breaking point.” They gave the State 45 days to submit a plan that will accomplish the goals of their order.