SCOTUS Case Could Expand Nursing Home Liability: What To Know

The U.S. Supreme Court recently agreed to review a case that could open government-owned nursing homes to greater legal risk.

In May, the high court granted review in Talevski v. Health and Hospital Corporation, et al., a lawsuit an Indiana couple brought in federal court in 2019 against a Valparaiso, Indiana nursing home for alleged violations of the Federal Nursing Home Reform Act (FNHRA).

The long-term care industry is watching the case closely because it could potentially provide plaintiffs with a new means for recovering damages against government-owned nursing homes, should the court agree with a 2021 federal appeals court ruling in the case. Before that ruling, plaintiffs could only sue nursing homes using state law claims of negligence or medical malpractice.

Gorgi Talevski and his wife, Ivanka Talevski sued Valparaiso Care and Rehabilitation, where Gorgi was a resident. The facility’s owner, the Health and Hospital Corporation of Marion County, was also included in the suit. The Talevskis filed under a federal civil rights law, 42 U.S.C. Section 1983, asserting violations of Gorgi Talevski’s rights under the FNHRA.

The FNHRA was enacted in 1987 as part of the Omnibus Budget Reconciliation Act approved by Congress. The landmark legislation established the minimum standards of care that nursing homes must meet to receive federal Medicaid dollars and rights for nursing home residents.

Two of the rights at issue in the Talevskis’ suit are the right to be free from chemical restraints imposed for purposes of discipline or convenience rather than treatment and the right not to be transferred or discharged unless certain criteria are met.

The plaintiffs allege that Valparaiso Care failed to adhere to the law by unnecessarily administering Gorgi Talevski psychotropic medications, which the couple believe led to his rapid mental and physical decline. Additionally, they maintain Valparaiso Care discharged and transferred Gorgi without the family’s consent.

In 2020, a federal judge dismissed the case after finding the FNHRA does not provide a private right of action for suit under Section 1983, which the Talevskis appealed to the U.S. Court of Appeals for the Seventh Circuit.

Judge Diane Wood, who wrote the opinion for the court, said that the U.S. Supreme Court has emphasized that plaintiffs seeking damages for an alleged violation of a statute through a section 1983 claim must assert the violation of a federal right, not just a violation of federal law.

The Supreme Court’s 1997 ruling in Blessing v. Freestone sets out a three-factor test for determining whether a federal law creates private rights that are enforceable under Section 1983:

• Congress must have intended that the provision in question benefits the plaintiff
• The plaintiff must show the right is not so “vague and amorphous” that its enforcement would strain judicial competence, and
• The statute must unambiguously impose a binding obligation on the states

The 7th Circuit concluded that the residents’ rights provisions of the FNHRA unambiguously confer individually enforceable rights on nursing-home residents like Gorgi Talevski and reversed the lower-court ruling, allowing the case to proceed.

The nursing home further appealed the case to the Supreme Court, which will take up the case in its next term.

Industry groups like the American Health Care Association have filed friend-of-the-court briefs urging the Supreme Court to uphold the initial dismissal of the case. The AHCA argued in its brief that the 7th Circuit’s decision results in disparate treatment of similarly situated participants in Medicare and Medicaid programs “whereby public participants in both programs are subject to greater litigation risk than their private counterparts for allegedly violating the same participation requirements.”

Court watchers note that if the Supreme Court agrees with the 7th Circuit, the result could be financially onerous for government-owned nursing homes, especially because these lawsuits could result in significant verdicts against nursing homes that are outside of any statutory damages caps, plus the award of attorneys’ fees.

Whichever way the court decides, the ruling is expected to have an outsized impact on facilities in Indiana. Roughly half of the country’s 1,007 government-owned facilities are in Indiana, according to the Indianapolis Star. Further, about 90 percent of the state’s nursing homes are owned by county hospitals.

Med Law Advisory Partners is continuing to monitor this case and its effects on the nursing home industry.

For 20 years, Med Law has worked with plaintiffs, defense counsel, and owners/operators of senior-living care facilities in litigation investigation and case preparation. Guided by their direct experience in patient care and long-term care facility administration, our consultants conduct in-depth analyses of medical records and identify critical factors to help support or defend against allegations of negligence or malpractice against nursing homes.

Contact us to learn more about how we can work with you in your nursing home litigation.