Emergency Preparedness - Stay Proactive: The Critical Elements and Proactivity

Emergency Preparedness - Stay Proactive: The Critical Elements and Proactivity

Over the past few months, numerous hurricanes have caused catastrophic damage. In the senior-housing community, this can lead to trauma and displacement among residents and loss among families and employees. In collaboration with Robert Young, International Goodwill Ambassador for Blue Team Restoration, Rebecca takes a look at the actions needed to accurate prepare for emergency situations.

Assisted Living Lawsuits: An Ounce of Prevention is Worth a Pound of Care

Assisted Living Lawsuits: An Ounce of Prevention is Worth a Pound of Care

As the population across the country ages, assisted living continues to grow in popularity. Resident care litigation risk has been emerging with more frequency as the mission and vision of assisted living communities evolve. Aging in place is a central philosophical aim of the assisted living movement, and the acuity levels of residents are higher and needs are increasing through the residency.

Overview of the Report to the National Advisory Council on Alzheimer's Research, Care and Services

Overview of the Report to the National Advisory Council on Alzheimer's Research, Care and Services

In Oct. 2018, the U.S. Department of Health and Human Services and the Foundation for the National Institutes of Health (through private sector support) held its first National Research Summit on Care, Services and Supports for Persons with Dementia and their Caregivers (the Summit). The report to the Advisory Council on Alzheimer’s Research, Care and Services presents the results of the Summit.

Legal Update: Evidence Preservation and ESI

Legal Update: Evidence Preservation and ESI

The recent case of EPAC Technologies, Inc. v. HarperCollins Christian Publishing, Inc., 2018 WL 1542040 (M.D. Tenn. March 29, 2018) provides a detailed example of the pitfalls of an inadequate litigation hold and the complexities of preserving ESI. The case revolves around a contractual dispute between a book publisher and a printing company, and it provides an interesting case study in the application of the changes to the Federal Rules of Civil Procedure governing spoliation of Electronically Stored Information (ESI).

Legal Update: Health Care Liability vs. Assault and Battery

Image courtesy of Huebi | Wikimedia Commons

In C.D. et. al. v. Keystone Continuum, LLC d/b/a Mountain Youth Academy, plaintiff, a minor, was a resident of Mountain Youth Academy, a trauma-focused residential treatment facility. The plaintiff got into a physical altercation with an employee of the defendant, Mountain Youth Academy. The complaint alleged, among other things, that the employee pulled the minor plaintiff to the ground and stomped on his foot, causing him injury.

The defendant moved to dismiss and/or for summary judgment, arguing that the complaint in this case alleges health care liability claims. The defendant argued that because of plaintiff's (1) failure to provide pre-suit notice under the Tennessee Health Care Liability Act (THCLA), Tenn. Code Ann. § 29-26-121 (Supp. 2017), and (2) the plaintiff's failure to file a certificate of good faith with the complaint, id. § 29-26-122, the lawsuit should be dismissed with prejudice. The trial court held that the plaintiff's claims sounded in health care liability. It dismissed the mother’s action with prejudice. The court also dismissed the minor’s action, but it did so without prejudice. The defendant appealed, arguing that the minor’s action should have been dismissed with prejudice. The plaintiffs also present issues. They argue that the trial court erred in ruling that their claims are based upon health care liability. Additionally and alternatively, the plaintiffs argue that their claims fall within the “common knowledge” exception to the general requirement of expert testimony in a health care liability action.

The Court of Appeals held that the plaintiff's claims for assault and battery were unrelated to the provision of, or failure to provide, health care services. Therefore, the plaintiff's assault and battery claims did not fall within the ambit of a “health care liability action” as defined by the statute and that the plaintiff's direct claims against the defendant, for negligent supervision and/or training of its employees, are health care liability claims but ones involving matters that ordinary laypersons will be able to assess by their common knowledge. Hence, expert medical testimony was not required and the plaintiff's claims were not required to file a good faith certificate with the complaint as to that claim. Therefore, the Court of Appeals held that mother’s failure to provide the defendant with pre-suit notice mandated a dismissal of her claim for negligent supervision and/or training, but that dismissal should have been without prejudice rather than with prejudice.

The court’s decision in C.D. v. Keystone provides further evaluation and assessment of whether a claim falls under the Tennessee Health Care Liability Act and when a good faith certificate is required for certain claims. Moving forward, the court’s decision will likely be used by plaintiffs to show that additional claims can be brought in a case involving a THCLA claim and that all claims against a health care provider do not necessarily fall under the THCLA. The court’s opinion also attempted to clarify the issue of whether a negligent supervision claim should fall under the THCLA. However, the court’s opinion is still vague as to whether the negligent supervision claim should be brought as a separate claim in the complaint or a theory underlying a claim for violation of the THCLA.


Overview: Sixth Annual Litigation Risk and Defense Strategies for Long Term Care & Assisted Living Providers, Insurers and Brokers Conference

Overview: Sixth Annual Litigation Risk and Defense Strategies for Long Term Care & Assisted Living Providers, Insurers and Brokers Conference

The 2018 Litigation Risk and Defense Strategies for Long Term Care & Assisted Living Providers, Insurers and Brokers Conference was a great success and a lot of fun! On April 4 and 5, 2018, Hagwood Adelman and Tipton, cohost firms and a distinguished group of industry experts gathered with our special guests in Houston for the sixth annual conference.