Articles Tagged with Nursing Home Litigation

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hallwayIn March of 2008, Frank Battaglia was a resident and patient of the Concord Health Care Center in Concord, Massachusetts.  Mr. Battaglia alleged that the Defendant Health Care Center had a duty to provide competent nursing and other care to the Plaintiff.  Additionally, the Plaintiff alleged that the Defendant negligently failed to provide proper and competent care, it carelessly and negligently failed to design and adhere to an appropriate plan of Care, it negligently failed to provide a safe living facility and environment to the Plaintiff, it failed to provide adequate and proper supervised care as needed, and it failed to properly assess and monitor the Plaintiff’s underlying medical condition.  As a result of the purported negligence by the Health Care facility, the Plaintiff alleged that he was caused to suffer permanent loss of function and mobility and ultimately filed a suit that proceeded to the United States District Court in Massachusetts.

In addition to the negligence claims brought above, the Plaintiff claimed a violation of Massachusetts General Law Ch. 93A, the consumer protection statute.  The Plaintiff alleged that while the Defendant was engaged in a trade or commerce (as defined by the statute) the Defendant misrepresented the quality of the services it would provide and failed to provide services in compliance with existing state and federal statutes, rules, and regulations.  As such, it was alleged that these actions (or inactions) rose to the level of unfair or deceptive trade practices for purpose of the statute, which allows for triple damages and the possibility of attorney’s fees in certain circumstances.  The Defendant filed a motion for summary judgment in response to the Plaintiff’s 93A claim.

The Health Care facility argued that the Chapter 93A claim should be dismissed based on a previous ruling by the Supreme Judicial Court in Darviris v. Petros, 812 N.E.2d 1188 (Mass. 2004).  In that case, the court held that medical malpractice was not remediable under Chapter 93A.  However, the court did hold that a Chapter 93A case may be allowed in certain circumstances.  Specifically, the court wrote: Continue reading →

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to-sign-a-contract-3-1221952-mAs previously discussed, the Wrongful Death statute in Massachusetts allows for the Personal Representative of an Estate to commence an action for damages against a Defendant for his or her negligence which causes death. In the past few years, issues have arisen as to whether such a law suit can commence when the person who has died (the decedent), or their representative, has previously signed an agreement with the Defendant that limits court actions in favor of binding arbitration. The Supreme Judicial Court of Massachusetts has recently had an opportunity to decide this very issue in Johnson v. Kindred Healthcare, Inc., as well as a slew of companion cases.

In the Johnson matter, Dalton Johnson was admitted to a nursing care facility operated by the Defendant organization. Prior to his admission at the nursing facility, he had executed a health care proxy which authorized his wife to act as his “health care agent” relating to “health care decisions.” In her capacity as Health Care Proxy, the wife of Mr. Johnson admitted him into the facility for long term care and treatment. As part of the admission process, she was asked to sign an agreement with the Defendant to submit any disputes that arise between the parties for resolution by mediation and/or arbitration (often referred to as an “arbitration agreement.”) Approximately one year later, Mr. Dalton suffered severe burns and was taken to a hospital where he succumbed to his injuries. The wife of Mr. Dalton brought suit against the Defendant claiming a variety of claims predicated on Wrongful Death.

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