Verdicts

Dismissed: Med-Mal Suit Cloaked in Civil Rights Garb

The U.S. District Court for the Eastern District of California recently dismissed a civil rights lawsuit brought by the estate of a deceased nursing home resident after finding that Congress, in enacting the federal laws cited by the plaintiffs, created no private right of action in them. Sanguinetti v. Avalon Health Care Inc., 2012 U.S. Dist. LEXIS 90036 (E.D. Cal. 6/28/12).

While resident in a nursing home, the decedent fell and was injured as she was being moved from a bed to a chair. The failed transfer was accomplished by means of a mechanical lift operated by a nursing home employee. The patient soon died of the injuries she sustained in the fall.

Plaintiffs brought suit in federal court alleging the nursing home violated 42 U.S.C. ' 1983 by denying the deceased's civil rights “under color of law.” Defendants moved to dismiss. Section 1983 provides, in pertinent part: “Every person who,
under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” The court noted that section 1983 does not, on its own, confer a private right of action on individuals; it is merely a means of enforcing rights that are otherwise granted by the U.S. Constitution or by other U.S. laws. The federal laws the plaintiffs cited to were several having to do with quality-of-care requirements, primarily under Medicare, Medicaid, the Omnibus Budget Reconciliation Act of 1987 (OBRA) and the Federal Nursing Home Reform Act (FNHRA).

The court observed initially that “[p]laintiffs' complaint is replete with allegations attempting to show that the individuals and entities named as Defendants were operating 'under color of law' for purposes of section 1983 ' . However, as to the more fundamental question of whether any of the federal statutes cited in the complaint confer individual rights that can be vindicated under section 1983, the complaint merely makes the conclusory assertion that '[t]he specific detailed regulatory provisions as well as the statutes in question create rights which are enforceable by the Plaintiffs pursuant to 42 U.S.C. ' 1983, as the language of these regulations and statutory provisions clearly and unambiguously creates those rights.'” To determine whether a statute enacted by authority of the spending clause (as the plaintiffs' cited statutes were) confers a private right of action, the court turned to a test enunciated by the U.S. Supreme Court in Blessing v. Freestone, 520 U.S. 329 (1997), which asks: 1) whether Congress intended the subject law to benefit the plaintiff; 2) whether the plaintiff can demonstrate that the right supposedly protected by the statute is not so vague that judicial enforcement would be too difficult; and 3) whether the provision of the law giving rise to the asserted right is couched in mandatory, rather than precatory, terms. Here, the court could find nothing to show that the terms of the statutes supposedly breached were intended to benefit individual plaintiffs; rather, they were aimed at delineating the responsibilities of medical facilities seeking to receive federal Medicare and Medicaid funds. Second, on the question of vagueness, the court stated: “What is painfully obvious about this action is that it is a completely garden variety medical malpractice action dressed in the clothes of rights violation. This raises a number of questions that cannot be directly answered. First and foremost, what precisely is the right and what constitutes a violation of it? Does Medicare or Medicaid guarantee a right against adverse outcome? Against procedural error? If there is a procedural error, is a right violated in the absence of an adverse outcome or must an injury result? The only possible answer to these imponderables is an implied contention that there is a federal 'right' against malpractice whenever it occurs in an institution that receives or Medicaid funding. This is obviously not the case and the implied suggestion that simple malpractice should be a federal case boarders on specious.” Concluding that this was a wrongful death/medical malpractice case that should be heard in state, rather than federal, court, the District Court granted the defendants' motion to dismiss.

Provider Must Get Actual Notice of Claim Within Four Years of Injury to Be Disqualified

Pennsylvania's Supreme Court has determined that under the terms of the Commonwealth's Medical Care Availability and Reduction of Error Act (MCARE), the MCARE Fund must defend and indemnify an insured when a medical malpractice claim is made within four years of the alleged tort but the target of the suit is not made aware of the legal action until more than four years have passed. Yussen v. Medical Care Availablity and Reduction of Error Fund, PICS Case No. 12-1112 (Pa. May 30, 2012).

The MCARE Fund is a state-run excess-insurance program that covers doctors' medical malpractice liability in excess of their primary insurers' responsibility. In accordance with MCARE's Section 715, the Fund also acts as the primary insurer of a medical care provider if a claim is filed more than four years after the alleged medical injury but within the applicable statute of limitations period. The plaintiff in the underlying medical malpractice case claimed an injury that occurred on July 7, 2003, and she filed a praecipe for writ of summons within four years of that date, on June 4, 2007. However, the defendant, Dr. Phillip S. Yussen, did not receive notice of the writ until July 23, 2007 ' a date beyond four years of the date of the injury. A lower appellate court ruling would have prevented Dr. Yussen from receiving defense and liability coverage for the 2007 lawsuit because it was originated within four years of the complained-of injury.

On appeal, the Supreme Court reversed, noting that the reason MCARE was set up was to encourage insurers to cover medical providers, and Section 715's four-year rule is in place so that private insurers that provide basic coverage will enjoy greater certainty concerning how much to set aside in reserve to cover possible claims. The court concluded that, at the very least, a provider must be notified of claim within four years of the complained-of injury before Section 715 coverage may be denied.

Dismissed: Med-Mal Suit Cloaked in Civil Rights Garb

The U.S. District Court for the Eastern District of California recently dismissed a civil rights lawsuit brought by the estate of a deceased nursing home resident after finding that Congress, in enacting the federal laws cited by the plaintiffs, created no private right of action in them. Sanguinetti v. Avalon Health Care Inc., 2012 U.S. Dist. LEXIS 90036 (E.D. Cal. 6/28/12).

While resident in a nursing home, the decedent fell and was injured as she was being moved from a bed to a chair. The failed transfer was accomplished by means of a mechanical lift operated by a nursing home employee. The patient soon died of the injuries she sustained in the fall.

Plaintiffs brought suit in federal court alleging the nursing home violated 42 U.S.C. ' 1983 by denying the deceased's civil rights “under color of law.” Defendants moved to dismiss. Section 1983 provides, in pertinent part: “Every person who,
under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” The court noted that section 1983 does not, on its own, confer a private right of action on individuals; it is merely a means of enforcing rights that are otherwise granted by the U.S. Constitution or by other U.S. laws. The federal laws the plaintiffs cited to were several having to do with quality-of-care requirements, primarily under Medicare, Medicaid, the Omnibus Budget Reconciliation Act of 1987 (OBRA) and the Federal Nursing Home Reform Act (FNHRA).

The court observed initially that “[p]laintiffs' complaint is replete with allegations attempting to show that the individuals and entities named as Defendants were operating 'under color of law' for purposes of section 1983 ' . However, as to the more fundamental question of whether any of the federal statutes cited in the complaint confer individual rights that can be vindicated under section 1983, the complaint merely makes the conclusory assertion that '[t]he specific detailed regulatory provisions as well as the statutes in question create rights which are enforceable by the Plaintiffs pursuant to 42 U.S.C. ' 1983, as the language of these regulations and statutory provisions clearly and unambiguously creates those rights.'” To determine whether a statute enacted by authority of the spending clause (as the plaintiffs' cited statutes were) confers a private right of action, the court turned to a test enunciated by the U.S. Supreme Court in Blessing v. Freestone , 520 U.S. 329 (1997), which asks: 1) whether Congress intended the subject law to benefit the plaintiff; 2) whether the plaintiff can demonstrate that the right supposedly protected by the statute is not so vague that judicial enforcement would be too difficult; and 3) whether the provision of the law giving rise to the asserted right is couched in mandatory, rather than precatory, terms. Here, the court could find nothing to show that the terms of the statutes supposedly breached were intended to benefit individual plaintiffs; rather, they were aimed at delineating the responsibilities of medical facilities seeking to receive federal Medicare and Medicaid funds. Second, on the question of vagueness, the court stated: “What is painfully obvious about this action is that it is a completely garden variety medical malpractice action dressed in the clothes of rights violation. This raises a number of questions that cannot be directly answered. First and foremost, what precisely is the right and what constitutes a violation of it? Does Medicare or Medicaid guarantee a right against adverse outcome? Against procedural error? If there is a procedural error, is a right violated in the absence of an adverse outcome or must an injury result? The only possible answer to these imponderables is an implied contention that there is a federal 'right' against malpractice whenever it occurs in an institution that receives or Medicaid funding. This is obviously not the case and the implied suggestion that simple malpractice should be a federal case boarders on specious.” Concluding that this was a wrongful death/medical malpractice case that should be heard in state, rather than federal, court, the District Court granted the defendants' motion to dismiss.

Provider Must Get Actual Notice of Claim Within Four Years of Injury to Be Disqualified

Pennsylvania's Supreme Court has determined that under the terms of the Commonwealth's Medical Care Availability and Reduction of Error Act (MCARE), the MCARE Fund must defend and indemnify an insured when a medical malpractice claim is made within four years of the alleged tort but the target of the suit is not made aware of the legal action until more than four years have passed. Yussen v. Medical Care Availablity and Reduction of Error Fund, PICS Case No. 12-1112 (Pa. May 30, 2012).

The MCARE Fund is a state-run excess-insurance program that covers doctors' medical malpractice liability in excess of their primary insurers' responsibility. In accordance with MCARE's Section 715, the Fund also acts as the primary insurer of a medical care provider if a claim is filed more than four years after the alleged medical injury but within the applicable statute of limitations period. The plaintiff in the underlying medical malpractice case claimed an injury that occurred on July 7, 2003, and she filed a praecipe for writ of summons within four years of that date, on June 4, 2007. However, the defendant, Dr. Phillip S. Yussen, did not receive notice of the writ until July 23, 2007 ' a date beyond four years of the date of the injury. A lower appellate court ruling would have prevented Dr. Yussen from receiving defense and liability coverage for the 2007 lawsuit because it was originated within four years of the complained-of injury.

On appeal, the Supreme Court reversed, noting that the reason MCARE was set up was to encourage insurers to cover medical providers, and Section 715's four-year rule is in place so that private insurers that provide basic coverage will enjoy greater certainty concerning how much to set aside in reserve to cover possible claims. The court concluded that, at the very least, a provider must be notified of claim within four years of the complained-of injury before Section 715 coverage may be denied.