A county-operated nursing home can’t be sued under federal civil rights law for a patient’s death after repeated falls during her residency, a Charlottesville federal court has ruled in a case of apparent first impression in Virginia.
The court rejected the new theory of liability based on federal statutes and regulations governing nursing homes that receive federal funds through the Medicare and Medicaid programs.
The “unmistakable focus” of these provisions “is on the conduct of the nursing home facilities, not on creation of “any substantive rights held by nursing home residents,” according to U.S. District Judge Glen E. Conrad.
There has been a “push by the plaintiffs’ bar to try and get” nursing home cases into federal court, according to Deborah E. Kane, a Virginia-licensed lawyer based in Hanover, Md. Kane represented defendant Dogwood Village of Orange County Health & Rehabilitation.
Plaintiffs have been trying to launch federal claims against nursing homes in recent years. The legal framework that allows care facilities to qualify for federal funding “is so pervasive, in terms of the requirements they impose on facilities,” she said.
“I see it as a trend, to try and bring Section 1983 actions” against nursing homes, Kane said.
But filing a Section 1983 claim in this case was not so much a “push” as a “claim of last resort for the plaintiff,” who faced an immunity defense barring state-law negligence claims against the county-run nursing home, according to Appomattox lawyer Robert W. Carter Jr., who represented the plaintiff.
“We knew we were fighting an uphill battle,” Carter said. “We knew we would be met with the bar of immunity in state court and were doing what we could with the tools available to help this plaintiff’s family,” he said.
Series of falls
June Mickey was admitted to Dogwood Village in late January 2012, suffering from senile dementia, hypertension, atrial fibrillation, failure to thrive and a previous fall, according to the July 26 published decision in Kalan, Adm’r v. Health Center Comm’n of Orange County.
Mickey suffered no less than six separate falls while at Dogwood Village, including a final fall that left her lying in a pool of blood in March 2014. She was taken to the hospital after that fall and diagnosed with a left-wrist fracture, hip fracture and a collapsed lung. Mickey died four days later at age 88.
Mickey’s estate filed suit for $4 million, alleging claims under 42 U.S.C. § 1983 and state law.
The plaintiff argued that Dogwood Village, by failing to prevent Mickey’s injuries and death, violated Mickey’s civil rights as protected by the federal Medicaid and Medicare Acts, and the Federal Nursing Home Reform Act, or FNHRA. Her complaint itemized 14 specific violations of these laws.
Finding a private right of action in a federal legal scheme is a tough test for plaintiffs.
In order to determine whether a particular statute creates a private right of action, a court considers whether Congress intended the statute to benefit a plaintiff, whether the right is not so “vague and amorphous” that a court could not enforce the right and whether the statute clearly imposes a binding obligation on the states. If a plaintiff can pass these three tests, she still has only a rebuttable presumption that she can sue under § 1983, Conrad said.
In Kalan, the plaintiff could pass only one test, as the court agreed the pertinent statutes and regulations clearly imposed a binding obligation on states and federally funded nursing homes.
But Conrad said he did not think Congress intended to confer federal rights to nursing home residents based on requirements under the Medicare Act and FNHRA concerning quality of life, services and activities for residents, nursing home administration and compliance with other laws and professional standards.
“There is no doubt that nursing home residents are benefited by these provisions,” Conrad wrote, and that “Mickey fell within the general zone of interest in these provisions.” But § 1983 is meant to protect against deprivation of rights, not vaguer “benefits” or “interests,” the judge said.
The court also contrasted language in the Medicare Act and FNHRA with explicit, rights-conferring language that courts have found to be critical to show congressional intent to create private rights, for instance in Title IX of the Education Amendment of 1972, and in a Medicaid Act provision governing application for assistance.
It also would be difficult for a court to enforce the “vague” rights asserted by the plaintiff, including Mickey’s right to adequate supervision, to be free from hazards, and right to reside in an effectively and efficiently managed facility, Conrad said.
Kalan appears to be the first test for this kind of civil rights claim in Virginia.
Kane said their legal research did not locate any other Virginia state opinion or other Virginia federal court opinion or other formal ruling that addressed a § 1983 case in a nursing home context.
“I doubt patients or families of patients in county-run nursing homes in Virginia know those facilities are immune from liability under state law,” Carter said.
The court’s opinion in Kalan underscores “the compelling need for the Virginia legislature to consider abolishing absolute governmental immunity for county-run nursing homes,” which likely are self-insured, or have insurance, much like for-profit nursing homes, Carter said.