Nursing home sued over a balance on patient's account. Admission Agreement was that payments would be made to the extent patient's assets could cover. Patient's agent &wife did not agree to pay from her assets. Nursing home did not live up to their side of the Agreement, tried bullying Agent-now-widow into paying out of her assets.
Civil suit was dismissed yet invoices and statements continue to arrive each month nearly a year later.
Elder law attorney was researching on her own time whether Agent could sue for this subtle harassment. She never finished her research so I'm wondering if anyone knows whether such a suit has been done.
1. Who filed the civil suit, what was the jurisdiction and was the suit appealed? What were the grounds and the relief sought? Specifically, what was the basis for dismissal? Were any judgments entered prior to dismissal?
2. Did the individuals who are being "harassed" and/or the patient's agent and wife ever send a Fair Debt Collections Practice Act notice to the nursing home, its parent company and/or its debt collector?
3. Did the patient's agent and wife sign any admission documents? Did the "agent" hold a DPOA? If not, under what capacity did he sign?
4. If I'm reading your post correctly, the Admission Agreements clearly specified that limitations on payments were a function of the patient's assets, and no other individuals guaranteed or signed on behalf of the patient. Yet someone (nursing home?) sued someone (patient's agent and wife?), but the suit was dismissed. Nursing home continues to contact patient's agent and wife?
5. If assumptions in 4. are correct, under a suit for harassment, the plaintiffs would have to demonstrate harassment as well as how it affected them - is there monetary damage? Emotional damage? How are they being injured? In others words, what's their cause of action and what are their damages, and how are they documented, especially if they're monetary?
I don't disagree that debt collectors are skilled in harassment. One of your issues would be what action those being harassed have taken to stop this, and identifying how the harrassers refused to stop and continued their abuse. How is this documented and how would it be presented in litigation? The fact that you mention "subtle harassment" makes me wonder how difficult it would be to prove this allegation.
If FDCPA notice(s) were sent to the harrassers and/or debt collectors, there is limited action available under that Act. I haven't read it recently but recall that it isn't really that helpful. I believe it required reporting to one of the federal oversight agencies.
However, sometimes involving BBB might help and save the cost of litigation. There's an online site dealing with a lot of egregious corporate actions but I can't recall the name of it now.
As to whether such a suit has been done, that's literally an impossible task to determine unless someone has access to Lexis-Nexis. Otherwise, manual searches by jurisdiction would take an incredible amount of time.
I'm wondering why the attorney "never finished her research". That isn't a responsible action if the attorney agreed to do it and accepted a retainer. If the engagement was on a cost basis with periodic billings and the bills were unpaid, the attorney may have justification not to finish the research.
Lots of unanswered questions would help clarify the situation.
1. The nursing home filed a civil suit against the widow/healthcare agent/guardian when their collection attempts failed. Never learned the basis for the dismissal; only that it was dismissed with prejudice before the court date. Besides the elder law attorney, assistance was also being sought from the Maryland Dept. of Aging and the Ombudsman so I'd like to think that putting a spotlight on the NH in that way contributed to the dismissal.
2. The debt collector was a law firm; last thing heard from them was a copy of the notice of dismissal arriving in the mail. Statements and invoices are coming from the NH.
3. Patient had dementia, too late to get POA so wife petitioned for and was awarded guardianship of his person and property by Maryland Circuit Court. She was later made his fiduciary by VA. Admission Agreement was signed by wife as guardian/agent.
4. In signing Admissions Agreement, wife never agreed to pay out of her assets. When VA delayed compensation payout, in good faith she sent a letter to NH to keep them aware of the delay. They took a single sentence from that letter - that she would pay them - to mean she would pay from her assets. Completely ignored context of letter which clearly showed she was referring to an earlier conversation with NH Administrator and VA social worker regarding the assets of her husband/ward. They ignored the point that their getting paid was contingent on the VA compensation check that never came. The whole point of the letter was to let them know VA hadn't done their part so she couldn't do hers.
5. Probably shouldn't have asked about the harassment; lawyer didn't say on what grounds she was looking to sue. I can imagine proving emotional harm would be difficult.
When told NH continued sending invoices and statements after the suit was dismissed, the attorney said she would do some research, collaborating with another attorney to see if the NH could be taught a lesson. I think she just got swamped with work moving from a solo to a partnered practice. She fulfilled the work she was retained for - the civil suit.
I was thinking next to go to BBB, re-connect with those in the State agencies who were previously so helpful. Via LinkedIn I contacted the Regional Manager for the NH's parent company (no reply from him). I would love to get access to Lexis or another legal database to research this subject.
As to the other issues, I need to read your response a few times to sort everything out. I've bookmarked this post and will try to respond tomorrow.
I appreciate your sharing all of this information.
As to Lexis, there may be a bar association in your county with a bar library that allows you to use Lexis. That's the only way I could access it.
3. I'm not really sure what the obligations, if any, would be for the wife who signed as Guardian/Agent. I think it would depend on the specific financial references in the admission agreement as well as any to which she committed in her role(s).
I won't pretend to be knowledgeable on this aspect; I'd really have to review some of the agreements I signed to get an idea what provisions were incorporated, but of course that doesn't mean that the agreement in your scenario had the same terms and conditions.
4. The specific wording of the letter would likely be contentious, and could possibly be misinterpreted to construe that the widow would pay from her funds. Hard to tell without seeing the letter (which I'm not asking to see).
5. I think you're right. Unless there are specific medical issues which arose from the harassment, and unless it can be proved the harassment was the proximate cause (as lawyers call it ) of those medical issues, it's difficult to prove. It's not like an accident in which someone was injured and the resulting health issues can be traced to the accident because they didn't exist before.
There's another possibility besides that mentioned in the last paragraph of your second post: Try to get an injunction against the nursing home.
Michigan's anti-stalking statute has a provision that includes "harassment".
See: http://www.legislature.mi.gov/(S(25oha0u1pitvkaofxs1szyxp))/mileg.aspx?page=GetObject&objectname=mcl-750-411i, section 1(d).
I think it would be considered that the continued request for payment would not be considered a legitimate purpose if the suit order of dismissal addressed the grounds for the nursing home's harassment.
Section (5) would provide the grounds to consider the repeated, unwanted contact harassment, and therefore subject to this statute.
What you'll need to do is research the statutes of the state in which the nursing home was located, as well as its state of incorporation if it's not the same as that of the nursing home and if written/verbal requests are coming from the hom state.
If the widow is another state, you'll need to research that state's statues as well. This is because if all are not located in the same state, there may be concurrent jurisdiction and "venue shopping" could be done.
Assuming though that all are located in the same state, and if that state has a similar law with similar provisions, try to get an injunction against the nursing home by this method.
Send the notices as required, by a method that requires the recipient to sign as that will be your proof of sending. Follow those statutory requirements to a "t".
In the meantime, itemize the dates of the various contacts to the widow to show the pattern of contact.
Contact the county clerk's office, or other department that handles county legal issues, and find out how to request and get a PPO. If the widow is successful, the order would typically prevent the nursing home from contacting her by phone, mail, email, in person, etc., but be sure to specify that in the petition that will have to be completed by the widow.
The advantages are many; cost and time savings, less aggravation, quicker action and response time, and you won't have to retain an attorney.