Recent Court Ruling Creates Difficulty Obtaining Documents from Nursing Facilities

Frequently, disputes with nursing homes related to resident care arise. When they do, the contracts, policies, and documents of the nursing facility become critically important. A recent Supreme Court of Virginia decision found an executor’s attempt to obtain those documents via court action to be inappropriate. This ruling affects the ability to bring an action on behalf of a loved one (or their estate), and it is important to understand for anyone who has loved ones in a nursing facility.

On July 14 in Cherrie v. Virginia Health Services, Inc., the Supreme Court of Virginia precluded an Executor’s action under the Declaratory Judgment Act compelling the production of policies and documents by a healthcare facility. The Executor’s action used rights found in Virginia administrative regulations as premise for the action. The Supreme Court of Virginia avoided construing the application of the term “residents and their designated representatives” found in the regulation and instead limited the holding to the availability of the Declaratory Judgment Act in enforcing duties of regulated parties. The method used to seek the documents was found to be improper, because administrative remedies were more appropriate than a court proceeding. Furthermore, the administrative regulations were held not to create a right to bring an action.

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This decision clearly eliminates an avenue for obtaining documents from nursing facilities, but does not resolve the issue of how to obtain such documents when necessary. If the individual is in the nursing home is still alive, the nursing home resident or the resident’s designated representative can request copies of the documents. In the case of a deceased resident, it is unclear whether the nursing home has to provide those documents to the personal representative of the administrator’s estate. Given the confusion generated by this case, it is critical to obtain copies of these documents before a problem occurs at the nursing home.

In the event an incident occurs at a nursing home, it is critical to consult an attorney. The nursing facility may refuse to provide requested documents unless a party has certain documented authority. An attorney can assist in obtaining necessary documents and taking necessary action.  If no designated representative has been appointed, an attorney can assist in working around that limitation. Furthermore, an attorney can help take necessary actions against the nursing home in a timely manner. If out-of-court disputes with a nursing home drag on, then a subsequent action against the nursing home may be barred due to statutory time limitations. Seeking the counsel of an attorney can help prevent this from happening. The attorneys at Hook Law Center are available to counsel you in how best to manage you or your loved one’s relationship with their nursing home and assist in any disputes that may arise.

Kit Kat

Ask Kit Kat – Drones with Peanut Butter

Hook Law Center:  Kit Kat, are there really such things as drones armed with peanut butter?

Kit Kat:  I know it sounds wild, but yes, the US Fish and Wildlife Service is considering using drones to drop peanut-butter pellets in northeast Montana. The reason—the peanut-butter pellets would be food for prairie dogs who frequently are infected with plague contracted from fleas. The pellets have a vaccine against the flea-based plague. However, the ultimate goal is to help black-footed ferrets, who are currently listed as endangered. In 1987, only 18 black-footed ferrets still existed.

The favorite food source for ferrets? You guessed it—prairie dogs! Prairie dogs make up 90% of this particular type of ferret’s diet. So in a roundabout way, the drones would be actually helping ferrets! The importance of the black-footed ferret is that is also the only one native to the United States. Its food source—prairie dogs—have significantly declined in number as the West has become developed either through farming or increased human population. The pellets have been used in lab trials, but now the government wants to expand their use to 1,000 acre tracts. The only alternative to drones appear to be sending in humans on an ATV. That would be more costly and disruptive to both animals, so the drone is being developed as we speak.

The concept of using drones may be new, but airdrops from planes or helicopters have been used in the past. For example, in 2013, helicopters were used in Guam to get rid of brown tree snakes. 2,000 dead mice, injected with Acetaminophen, a common painkiller for humans, were dropped in the forests there. Acetaminophen, while helpful to humans, is poisonous to snakes. In the 1970s and 1980s, vaccine-stuffed chicken heads were dropped in Switzerland to keep foxes free of rabies. The state of Texas fights rabies to this very day by airdrops of millions of fishmeal-coated anti-rabies packets. Consumers of this bait are coyotes, foxes, and even skunks.

So, once again, technology is being used to help man solve complex problems more efficiently and quickly. Stay tuned as we await more information about this interesting and creative project! (https://www.washingtonpost.com/news/animalia/wp/2016/07/15/drone-fired-peanut-butter…)

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