Nashville at Law: Appellate ruling may impact nursing homes

Monday, August 25, 2008 at 1:05am

A recent ruling by the Tennessee Court of Appeals may add an additional step to the emotionally straining process of placing an incapacitated loved one in a nursing home.

On Aug. 15, the court ruled against Murfreesboro-based nursing home provider National Healthcare Corp. in its effort to compel a wrongful-death plaintiff to submit to arbitration rather than the courts.

Nina McKey of Lawrenceburg filed suit against NHC following the death of her mother, Ruby Irene Brewer, in 2006. The lawsuit accuses NHC of gross negligence in caring for Mrs. Brewer, who was in an NHC facility from February 2005 until shortly before her death.

McKey had signed the paperwork when her mother was admitted to the home, and the contract included language saying that any disputes under it would be resolved through binding arbitration, not litigation.

NHC contended that McKey’s signature, and her acknowledgement that her mother was incapacitated, made her a legal surrogate for the patient under the Tennessee Health Care Decisions Act. That law, enacted in 2004, was primarily meant to simplify advance planning for end-of-life healthcare decisions. But it also applies to decisions such as whether to sign a contract for entry to a nursing home.

A Lawrence County judge refused to force McKey into arbitration, ruling that NHC had failed to prove she met the legal standard to act on behalf of her mother. NHC then appealed.

Writing for the court, Appeals Court Judge Andy D. Bennett noted that the Health Care Decisions Act allows a surrogate to step in and make decisions only after “a determination by a physician that the patient lacks capacity.”

The court found that “it is essential that the requirements of the Tennessee Health Care Decisions Act be met before a person can be deprived of the right to make his or her own health care decisions.” And it said NHC did not meet the requirements, since it did not call in a doctor to certify the mother’s condition.

“It makes it clear to me that the Health Care Decisions Act is going to be strictly interpreted,” said Michael D. Brent, an attorney at Boult, Cummings, Conners & Berry in Nashville.

Brent was not involved in the McKey case, but he counsels nursing home clients on contract matters. He thinks McKey and an unrelated case also handed down on Aug. 15 represent the first time the state’s appeals court has interpreted the 2004 law.

In other recent appellate cases dealing with arbitration agreements in nursing home contracts, Tennessee’s higher courts have found that the agreements can be enforceable — disappointing plaintiff’s lawyers who have argued that they are inherently unfair to patients and families, who may feel they have no choice but to sign in order to obtain needed care.

But Brent says the McKey ruling sets a precedent that nursing homes will ignore at their peril.

“I’ll be advising my clients that the courts are going to interpret the act tightly, and that they need to dot every ‘I’ and cross every ‘T’ to make sure they comply with it — especially the provision requiring physician review.”

The case may induce nursing homes to require a medical certification of incompetence when admitting patients who cannot sign papers for themselves. Individuals can plan ahead and prevent that issue from arising by executing durable powers of attorney for health care, which name someone else to serve as a legal representative in the event of incapacity.

Representing plaintiff McKey was Lisa Circeo of the Tampa-based nursing home litigation firm Wilkes & McHugh, who has recently moved her practice to Nashville. Deborah Truby Riordan of that firm’s Little Rock office also represented the plaintiff. Arguing NHC’s case were John B. Curtis Jr. and Bruce D. Gill of Leitner, Williams, Dooley & Napolitan, out of Chattanooga.

Other cases of note from Aug. 12-19

United States Court of Appeals for the Sixth Circuit

• Brian Petty v. Metropolitan Government of Nashville-Davidson County. Ruling issued Aug. 18. All of Metro Police Officer Petty’s problems flowed from a jerry can full of wine, brewed in the desert of Kuwait. After serving in the Army National Guard throughout his more than 12 years on the police force, Petty was deployed to Kuwait in early 2004.

That summer, an inspection uncovered the five-gallon wine jug in his quarters, and Petty, a captain, admitted having provided drinks to a female sergeant. With disciplinary procedures underway, Petty resigned his commission. The Army dropped the charges and issued him an honorable discharge in 2005.

When Petty sought to return to his job on the force in Nashville, he had to pass through a standard review process for officers returning from an extended absence. He disclosed the fact that he had faced charges in Kuwait, though not that they involved alcohol. Metro allowed him to return to work, but internal affairs officials then started an investigation into whether he had been untruthful in his disclosures. However, they later closed that probe and told Petty he was cleared.

Only after clearing him did the department request his military records from the Army and learn the nature of his indiscretion in Kuwait. It launched a new investigation and assigned Petty to desk duties he viewed as punitive.

Petty sued Metro for violating the federal law on re-employment of reservists after their deployments. Middle Tennessee District Judge Todd J. Campbell ruled in favor of the police department on all counts of the lawsuit. But the Sixth Circuit now reverses that ruling in its entirety. The key finding: Petty’s honorable discharge made him eligible to return to his job, under the law, despite any lack of candor about the trouble he had been in.

The case was remanded to Campbell’s court for consideration of damages. Plaintiff’s attorneys: Michael J. Wall and James G. Stranch III of Branstetter, Stranch & Jennings. Defendant’s attorney: Kevin C. Klein, Metropolitan Department of Law.

Davidson County Circuit Court

• Robert and Abbey Voss v. Kerry Leonardo Frazier Sr., Kendall Tucker and Metropolitan Government of Nashville-Davidson County. Filed Aug. 12. This one provides a new definition for “playing through.” The plaintiffs say they were enjoying a round of golf at Metro’s McCabe course a year ago when Frazier and Tucker, playing behind them, got frustrated at their pace of play.

First, they started whacking golf balls at the Vosses on purpose, the lawsuit alleges. Then Frazier came up and slugged Robert Voss. Then, after other golfers intervened to pull Frazier off of him, Tucker cold-cocked him in the face with a golf club, “causing severe and permanent injuries.”

Tucker was indicted earlier this year on an aggravated assault charge for the alleged attack. The case remains pending, according to Criminal Court records. The records do not show any charges against Frazier.

The complaint blames Metro for failing to protect Voss after he had notified McCabe personnel that someone was hitting balls at him and his wife. The Vosses seek unspecified damages. Plaintiff’s attorney: Jack A. Butler of Butler, Elkin & Associates.

Davidson County Chancery Court

• Platinum Hospitality Management Co. Inc., Mitul Patel and Vijay Patel v. John Doe. Filed Aug. 18. The Patels, operators of hotel developer and manager Platinum, have apparently gotten on the wrong side of someone. They are suing a person known only under pseudonyms who has sent e-mails to them and their bankers claiming that Mitul Patel “steals from people, he sues people, and has no friends.”

The messages also accuse the Patels of patronizing a Texas “whore house,” among other misdeeds. The Patels seek $100,000 for defamation, along with a retraction. Plaintiff’s attorneys: Russell B. Morgan and Joel D. Eckert of Boult, Cummings, Conners & Berry.

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