Significant Nursing Home Law and Other Health Care Cases

Hise et al v SSC Submaster Holdings, LLC et al, Denver District Court Civil Action, 2009 CV 600.

In this law reform case, on behalf of all nursing home residents in the State of Colorado, we brought a statewide class action lawsuit in Denver District Court, alleging that the State's policy of permitting nursing homes to obtain and maintain licenses - without procuring and maintaining liability insurance compliant with the Health Care Availability Act (HCAA) or obtaining proper approval for proposed alternative forms of security in accordance with Division of Insurance (DOI) regulations - had the effect of wiping away the guarantee of financial responsibility owed to the plaintiffs and many other frail vulnerable nursing home residents throughout Colorado who were similarly situated.

As a result of this lawsuit, on October 15, 2009 the State formally withdrew its prior policy and issued a new policy establishing financial responsibility compliance requirements for all health care institutions that are required by law to demonstrate compliance with the HCAA.

This case was nominated for consideration by the Colorado Trial Lawyers' Association's for Case of the Year.

Lujan v. Life Care Centers of America. 222 P.3d 970 (Colo. App. 2009).

In this case of first impression, the Colorado Court of Appeals upheld a District Court's decision rejecting arbitration and allowing our wrongful death case to proceed to trial. The Court held that a medical proxy appointed after a nursing home resident became incompetent could not sign an agreement to arbitrate any nursing home claims. The Court also significantly held that, under Colorado law, the decision to arbitrate is not a medical treatment decision. See the Court of Appeals decision.

Kilbourne et al. v. O'Hara Rehabilitation Center.

This Denver District lawsuit resulted in the plaintiffs obtaining a 30 million dollar damages judgment in 2001, following arbitration with undisputed liability on behalf of some of the plaintiffs. The case was later confidentially settled after a second round of litigation involving bad faith litigation against CNA, one of the involved insurance carriers. The District Court also recognized the plaintiffs' claim that the Colorado Consumer Protection Act applied to nursing homes with respect to representations publicly made as to the quality and amount of care that will be provided to each resident.

Jahn ex rel. Jahn v. ORCR, Inc. 92 P.3d 984 (Colo. 2004).

We actively assisted in the preparation of all briefs in this writ to the Supreme Court challenging the dismissal of damage claims by nursing home residents who had been members of an earlier class action for injunctive relief to enforce promised staffing levels against O'Hara Rehabilitation Center that we handled in the Kilbourne case. This class action was mooted with the closure of the facility under the weight of regulatory pressure. The Supreme Court held that the dismissal of the resident's claims, even though they had never been notified of the former class proceeding nor provided an opportunity to intervene or request exclusion from the class, violated due process. All claims were ordered reinstated.

In Re Estate of Michael Patrick Smith v. Heckler, 747 F.2d. 583 (10th Cir. 1984).

This class action successfully challenged the former paper compliance focus of the Medicaid nursing home inspection system and resulted in an order compelling the U.S. Secretary of Health and Human Services to implement the current resident-focused inspection system nationwide. The case also helped lead to the passage of OBRA 87, the national Nursing Home Reform Act. United States District Court Judge Matsch supervised the implementation of this reform, invalidating government proposals several times, and finally holding the Secretary of Health and Human Services in contempt of court in a published opinion, which led to complete government cooperation with the national inspection system change. See the decision of the 10th Circuit Court of Appeals. On the damages side of the case, after years of litigating with the former owners in bankruptcy, the surviving disabled and elderly residents of Heritage House Nursing home divided a several million dollar insurance settlement which permitted a number of them to buy their own homes and live independently. This case was also the subject of a Warner Brothers Sunday Night TV movie called When you Remember Me, which starred Kevin Spacey and Fred Savage.

Rogers v. Atencio, 608 P.2d 812 (Colo. App. 1979).

This state-wide class action resulted in the judicially mandated creation and maintenance of the first home care program in Colorado.

Duc Van Le v. Ibarra, 843 P.2d 15 (Colo. 1992).

This state-wide class action resulted in the creation of home care services eligibility for persons suffering from mental illness. Prior thereto, only the elderly and physically disabled were being included in Colorado's home care program.

Kohn v. Julia Temple. 170 F.R.D. 474 (D. Colo. 1996).

This case resulted in a substantial settlement for a group of nursing home residents and also established the right of groups of nursing home residents to join together in a single lawsuit arising out of a common nucleus of operative facts. It also established the right of such residents to have access to facility incident reports.

Osment v. Heritage Rehabilitation Center.

This Denver District Court group case resulted in a substantial settlement for 11 nursing home residents.

Bowie v. Denver General Hospital. 78 M 1186 (D. Colo.)

This class action resulted in an injunction preventing Denver General from collecting 18 million dollars in bills because it had completely failed to program into its billing system a state mandated ability to pay scale.