OCTOBER 17, 1994 VOLUME 2, NUMBER 15
An additional sampling of recent decisions from courts around the country of interest to advocates, caretakers and service providers to the elderly:
Nursing Home May Sue Spouse
Franklin Donovan lived the last two years of his life in the Peabody Glen Nursing Center in Massachusetts. During the first months of his ing home stay, he and his wife had conveyed their property to another, reserving life estates in the property.
After Mr. Donovan’s death, Peabody Glen sued Mrs. Donovan to recover the costs of his care. Mrs. Donovan defended by saying that she had never signed a contract to pay her husband’s costs, and that her remaining interest in the property could not be reached for his debts. The Massachusetts Court of Appeals disagreed on both counts.
While Mrs. Donovan had not signed a separate promise to pay her husband’s debts, the Court ruled that she was liable as a spouse for the costs of care provided to her husband, based on Massachusetts law. Another provision of Massachusetts law, restricting recovery for spousal debts to certain kinds of property, was also held not to prevent recovery against Mrs. Donovan’s life estate. Mediplex of Mass., Inc., v. Donovan, Mass. Court of Appeals, June 21, 1994.
[Ed. note–Although Arizona is a “community property” state, and the precise statutes involved in the Massachusetts case do not exist in Arizona, the result would almost certainly be the same. In a 1977 case, for instance, the Arizona Supreme Court ruled that a husband is liable for the costs of his wife’s medical operation, even though they were separated at the time and later divorced, since he could not show that the operation was not necessary.]
Bimonthly Monitoring is “Skilled Care”
Walter Bergeron, an 86-year-old man living at home, suffered from a variety of illnesses which required that a home health care nurse visit regularly to monitor his care. In February, 1990, those visits were decreased to twice a month, and in April, to once every other month.
Medicare declined to cover the nursing visits, maintaining that they were no longer “skilled care” because of their infrequency. Mr. Bergeron appealed the denial, and lost before the Administrative Law Judge. The ALJ found that Mr. Bergeron’s nursing care was not reasonable and necessary, since his condition appeared to have stabilized.
Mr. Bergeron appealed to the Federal Court, which overruled the government and ordered Medicare coverage. The Federal Judge noted that the visiting nurse provided diabetic foot care to Mr. Bergeron, as well as regular monitoring deemed necessary by his physician. The fact that the monitoring and nursing care stabilized his condition does not render the continuing care unnecessary, said the Judge. The physician’s opinion that the monitoring was still required should have been given “extra weight.” Bergeron v. Shalala, Vermont District Court, April 5, 1994.