Recent Court Cases

APRIL 25, 1994 VOLUME 1, NUMBER 22

More court cases of note to those caring for or working with elders:

No Duty to Have Monitors

In 1990, Kenneth Emerson moved to Adult Community Total Services, a Pennsylvania retirement community. His contract provided that ACTS would furnish a residence, meals and other services for his lifetime. Mr. Emerson paid $83,000 up front and agreed to make monthly dues payments.

Mr. Emerson suffered a stroke and died five months after moving to ACTS. His body was not found for two days.

Mr. Emerson’s estate sought to recover the $83,000, claiming that ACTS had misrepresented the services provided. The estate pointed out that the agreement promised a “trained security team,” and argued that permitting ACTS to keep the initial payment would unjustly enrich the organization.

The estate also argued that ACTS had an affirmative duty to provide “an effective passive monitoring system and medical response system.” The absence of a system, insisted the estate, was negligence.

The Court ruled that ACTS had no duty to provide a monitoring system. It also noted that the contract specifically ruled out refund of the initial fee unless the resident died within four months of entry into the community. The estate’s claims were dismissed. Emerson v. Adult Community Total Services, Inc. (Eastern District Pennsylvania, January 6, 1994).

Interstate Guardianship

The Florida Public Guardian was appointed as “Jimmie L.”‘s guardian after an injury at his job. His ex-wife sought to have him transported to Wisconsin to be near his family, and initiated a Wisconsin guardianship (with the Florida guardian’s consent) to facilitate the transfer.

The Wisconsin court ruled that Jimmie was no longer a Wisconsin resident, and that the pending Florida guardianship precluded a Wisconsin proceeding. The Wisconsin court of appeals reversed, holding that there was evidence Jimmie intended to return to Wisconsin. Furthermore, the Florida court had specifically ruled that Jimmie could return to Wisconsin once the guardianship was in place, thereby implicitly agreeing that the two courts could share responsibility for the guardianship. In re Jimmie L., Wisc. Court of Appeals, December 30, 1993.

[Ed note-Jimmie L.’s case may provide some help in analyzing the increasingly common problems of guardianship across state lines. In most cases, however, the guardian’s authority will simply be accepted in other states.]

Stroke Treatment

New research shows that prompt treatment for stroke victims may significantly reduce brain damage. Several studies indicate that the medical community should learn to think of strokes as “brain attacks,” similar to heart attacks in the need for immediate intervention in most circumstances.

Much of the research focuses on drug treatments to restore blood flow to the brain or block the action of harmful substances released during strokes. But some of the projects have shown that controlling blood pressure, lowering blood sugar levels or even lowering body temperature may reduce the damage to the brain from strokes.

About 500,000 Americans suffer from strokes each year. Nearly 150,000 die of strokes in a given year.

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