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Legal Speak

Who Can Sue?

Published June 24, 2013 2:47 PM by Tony DeWitt

One of the concepts that lay people have trouble with in terms of the law is the concept of standing. Standing basically means that a person must have a "justiciable interest" in a lawsuit. That means that the decision in the lawsuit must directly affect them.

In its simplest terms, standing is about whose ox got gored  Suppose a woman at the mall, in order to get to a sale item, hits your sister and dislodges one of her teeth.  She can sue the person for the battery because she has a real interest in seeing justice done. Similarly, the store could file a restraining order against the crazed woman because keeping rowdy people out of its store is a real concern. But you could not sue because your sister got hit, even if it troubled you a great deal, caused you to lose sleep, and generally made your life miserable. This is because you don't have "standing" to sue. You do not have a direct interest in the litigation.

Particularly in long-term-care there are organizations that consider themselves "advocacy groups." The idea is nothing new. Advocacy groups called lobbyists consistently ply Congress with money, alcohol and meals to get what they want. In the LTC context most advocacy groups are about the quality of care rendered to residents. Recently a California group came up with a novel approach to challenging care of residents in federal court.

Under a federal law called the Federal Nursing Home Reform Act, every Medicare- or Medicaid-certified nursing facility must have a governing body or ownership entity.  Normally that's a board of directors, although sometimes it can simply be an owner (or a corporation or LLC).  Whatever the ownership entity is, owner or board, that ownership entity must appoint an administrator. The law requires that the administrator be "directed by and answerable to" the ownership entity.

Some nursing home chains, and indeed many privately-owned nursing homes use management contracts where the operation of the nursing home is turned over to a separate entity that under the contract takes over all the operational aspects of running the nusing facitlity.  Recently a California advocacy group challenged this arrangement as violative of the Reform Act. They asserted residents suffer when there is a layer between the owner and the administrator.

But in getting into court the advocacy group made a fatal mistake. They sued in their own name, and not in the name of the patients they purported to represent. Although there is a concept known as "associational standing" generally this is applicable only where directors of an association (for example, the American Dental Association) sue on behalf of its members. Here that wasn't present, and the judge, John S. Tigar, threw out the case on that basis (although he did give them leave to refile within 30 days).

The judge was skeptical that transferring operational control to an independent management group affected patient care, but by giving the group time to replead and refile, he has at least given them a chance to make the case.

Read more articles on this topic:

Documentation Keeps Nurses Out of the Courtroom

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posted by Tony DeWitt


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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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