Recent Court Cases

MARCH 13, 1995 VOLUME 2, NUMBER 36

Recent court decisions of interest to those dealing with the elderly:

Care Home Liable for Condition of Resident

Sylvia Kyro, a demented patient, was a resident at Country Home Care in the Reno, Nevada, area. After she had been at the home for about two years, she became bedridden. Four months later, in April, 1993, she was taken to an area hospital.

At the hospital, Ms. Kyro was found to be malnourished and suffering contractures of both legs. The contractures were determined to be the result of lack of movement and muscle degeneration from inadequate blood circulation.

At the time of admission hospital staff also found infected bedsores on Ms. Kyro’s hips, knees and elsewhere. The most serious sores were Stage IV–the most advanced categorization.

Ms. Kyro’s guardians sued the care home, alleging that the home should have taken steps to transfer Ms. Kyro to a higher level of care when she became bedridden. The guardians also alleged that the home failed to notify Ms. Kyro’s physician of her worsening condition, which would have been a violation of Nevada licensing regulations.

In November, 1994, Country Home Care settled the claims. The amount of the settlement: $410,704. Kyro v. Frederick d.b.a. Country Home Care, (Washoe County District Court, Nevada, November 10, 1994).

Veteran’s “Aid and Attendance” Reduces Medicaid

Roland Kreuger, a North Dakota nursing home resident, was a veteran. In 1992 the Veteran’s Administration increased his “aid and attendance” payment. Since his care was being subsidized by Medicaid, his “turnover” amount (the amount he had to contribute to his nursing home care each month) was increased by the same dollar amount, resulting in no net increase to Mr. Kreuger.

Mr. Kreuger attempted to transfer his aid and attendance increase to his wife rather than use it to pay a portion of his nursing care. His argument (which was successful in the North Dakota trial court): federal law expressly provides that aid and attendance is not “income” and therefore not available for calculation of the turnover amount.

The North Dakota Supreme Court, however, reversed the lower court holding. Since the aid and attendance allowance was intended to provide care for veterans, and since Medicaid does not provide similar care when other payors are liable to do so, aid and attendance is a third-party program legally liable for the care before Medicaid makes a contribution. Kreuger v. Richland County Social Services (North Dakota Supreme Court, December 20, 1994).

©2021 Fleming & Curti, PLC