Reply Brief — Abbey Nursing Home, Inc. v. Estate of Richardson

Ly

ALEXANDER L. STEVAS,

CLERK

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No. 84-928

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

ABBEY NURSING HOME, INC.,

AND MAX A. STRAUSS,

PETITIONERS

ON WRIT OF CERTIORARI

TO THE OHIO EIGHT DISTRICT

COURT OF APPEALS

PETITIONER'S REPLY BRIEF AND SUPPLEMENTAL APPENDIX

AUBREY B. WILLACY, ESO.

COUNSEL OF RECORD FOR PETITIONERS

TIMOTHY A. MARCOVY, ESO.

WILLACY & LOPRESTI

700 Western Reserve Building

1468 West Ninth Street

Cleveland, Ohio 44113

(216) 241-7740

ATTORNEYS FOR PETITIONERS

Bruni v. Tatsumi, 7,9

46 Ohio St. 2d 127 (1976)

Combs v. Cardwell, 6

472 F. 2d 1188,

68 Ohio Ops. 2d 243

(6th Cir. 1972)

S@EBRERRERREERZES

Detling v. Chockley, 9

70 Ohio St. 2d 134 (1982)

Fleischmann Transportation Co. v.

12 Ohio App. 293 (Hamilton 1919)

Lakes v. Buckeye Mutual Ins. Ass'n., 8

110 Ohio App. 115 (Jackson 1959)

McCrory v. State, 7,9

67 Ohio St. 2d 99 (1981)

McKay Machine Co. v. Rodman, 7,9

11 Ohio St. 2d 77 (1967)

Chio State Bar Ass'n. v. Mayer, $

54 Ohio St. 2d 431 (1978)

Ragone v. Vitali and

Beltrami, Jlee Inc., 7,9

42 Ohio St. 2d 161 (1975)

State v. Mishne, 6

93 Ghio L. Abs. 85

(Geauga App. 1963)

University Hts. v. Dachman, 6

33 Ohio App. 2d 314 (Cuyahoga 1973)

White v. White, 6

50 Ohio App. 2d 263 (Cuyahoga 1977)

Willett v. Rowekamp, 7,9

134 Ohio St. 285 (1938)

Youngberg v. Romeo, 8,9,11l

457 U.S. 307 (1982)

BEELER EREREEEEE EEE

STATUTES:

42 U.S.C. §1396a(a) (25) (C) 2,3

O.R.C. §2301.20 6

O.R.C. §5101.58 2,3

-iii-

SEGEGEEEE SE EE EEE

A.

Is it a violation of Article VI, Cl. 2, the

"Supremacy Clause” of the Constitution of the

United States, for a state, through its

courts, to refuse to enforce Federal statutory

law, specifically the subrogation provisions

of 42 U.S.C. §1396a(a)(25)(C), found in Title

XIX of the Social Security Act, by refusing to

give effect to the state statute carrying out

the requirements of Federal law, in this case

Q.R.C, $5101.58?

In her argument in opposition to certiorari,

respondent concedes the validity of the constitu-

tional issue raised therein. She only challenges

the underlying factual basis for the reason for

granting the writ by stating, at p. 10 of her

brief:

SESEEEEEREEEEEZEE

Petitioners argument and alleged viola-

tion of the Supremacy Clause is totally

without merit. The alleged right of sub-

rogation referred to by petitioners does

not apply in this action because respon-

dent did not seek to recover any money

paid to Abbey Nursing Home by either the

Ohio or Cuyahoga County Welfare Depart-

ments. [Emphasis in the original.)

The foregoing is an incorrect statement of the

issue raised by petitioners for two reasons.

First, petitioners asserted, at pp. 8 and 22 of

their Petition, that 42 U.S.C. §1396a(a) (25) (C) and

O.R.C. §5101.58 were violated because Medicaid

funds paid for certain health care expenses al-

legedly necessitated by her decedent's claimed in-

juries, which respondent included in her claim for

recovery. While respondent may not have sought re-

covery for Medicaid funds paid to petitioner Abbey

Nursing dome, she did seek damages for expenses

paid in her behalf by Medicaid.

Second, the record in this case establishes

the foregoing facts through respondent's own admis-

sion on direct testimony at the first trial of this

action. (See, testimony of Verneda Bentley on

direct examination, at pp. 890-891 and 893-896 of

the Transcript of Proceedings of the First Tria.

herein, reproduced in the Appendix hereto at pp. 15

to 20.) Thus, the facts in this case do demon-

strate that the courts of Ohio have failed to en-

force the applicable subrogation provisions of 42

U.S.C. §1396a(a)(25) and O.R.C. §5101.58, thereby

prejudicing petitioners by exposing them to the

risk of double recovery against them for the amount

paid by Medicaid.

B. Is it a violation of Section 1 of the Four-

teenth /.mendment to the Constitution of the

United States and, therefore, a denial of Due

Process and of Equal Protection of the laws

for the courts of a state, in a civil case, to

deny a party thereto the benefit of those

well-settled statutory and common law rules

Seer et ee ee eee ee ee

governing substantive proof and trial proce-

dure which are ordinarily and regularly ap-

plied in similar disputes before such courts?

Again, respondent raises no opposition to

petitioners’ central constitutional issue that the

denial to a party, in a civil action in a state

court, of the benefit of well-settled statutory and

common law rules governing proof and procedure,

constitutes a violation of the Due Process and

Equal Protection guarantees of the Fourteenth

Amendment. Rather, respondent's opposition is an

attempt to rebut five out of the eight deprivations

so listed on pp. 32-33 of the Petition. If the

courts of Ohio did, in fact, deprive petitioners of

their right to have their case tried under the same

rules as all other litigants, then the validity of

this reason for granting the writ is also conceded

by respondent. And, in fact, petitioners were de-

prived of the benefits of those rules.

BEER RS SSSERSRSERER EES

Respondent, at p. 11 of her brief, suggests

that no error occurred as a result of the trial

court's refusal to permit a verbatim stenographic

record to be made of all of the trial proceedings,

thus depriving petitioners of their right to obtain

effective appellate review. Respondent predicates

this contention upon Ohio App. R. 9, as allegedly

interpreted by the Ohio Supreme Court in Knapp v.

Edwards Laboratories, 61 Ohio St. 2d 197 (1980).

That case, however, is no authority for the rule

which respondent insists is the correct one.

Rather, Knapp involves a bizarre fact pattern,

wherein the trial court permitted a full verbatim

stenographic record to be made but, after the

trial, a combination of the illness of the court

reporter and the mental instability of the trial

judge [which led to his removal from the bench --

see, Ohio State Bar Ass'n. v. Mayer, 54 Ohio St. 2d

431 (1978)], prevented a transcription of that re-

cord which was, in fact, made.

SREB RES SERSEERS SES

The rule in Ohio is set forth in a statute,

RC. §2301.20, which provides:

Upon the trial of a case in the court of

common pleas, if either party to the

suit, or his attorney, requests the ser-

vices of a shorthand reporter, the trial

judge shall grant the request, or such

judge may order a full report of the tes-

timony or other proceedings, in which

case such shorthand reporter shall take

accurate shorthand notes of the oral tes-

timony or other oral proceedings, which

notes shall be filed in the office of the

official shorthand reporter and carefully

preserved.

This statute has repeatedly been held by the

courts of Ohio to require that a stenographic re-

cord of all trial proceedings be afforded to a

party where, as here, it has been timely requested.

White v. White, 50 Ohio App. 2d 263, 268-269 (Cuya-

hoga 1977); Combs v. Cardwell, 472 F. 2d 1188, 68

Ohio Ops. 2d 243 (6th Cir. 1972); University Hts.

v. Dachman, 33 Ohio App. 2d 314, 316 (Cuyahoga

1973); State v. Mishne, 93 Ohio L. Abs. 85, 92

(Geauga App. 1963). Petitioners herein were

Clearly deprived of this right.

BEESEREERS RE SRSERSEESSS

Respondent iuotane, at pp. 12-13 of her brief,

that Ohio law does not require expert proof — ina

case involving allegations that a nursing home, ac-

ting through its staff of licensed administrators,

licensed nurses, and nurses’ aides and orderlies,

was negligent in the discharge of its duties toward

respondent's decedent -- of (a) the standard of

care; (b) that the conduct of the health-care staff

involved fell below that standard; and (c) that the

Claimed injuries of decedent were proximately

caused by that breach. The law in Ohio, and as set

down by this Court, is, of course, that such expert

testimony is both required and permitted. Bruni v.

Tatsumi, 46 Ohio St. 2d 127 (1976); Ragone v.

Vitali and Beltrami, Jr., Inc., 42 Ohio St. 2d 161,

173-174 (1975); McKay Machine Co. v. Rodman, 11

Ohio St. 2d 77 (1967); McCrory v. State, 67 Ohio

St. 2d 99, 103 (1981); Willett v. Rowekamp, 134

Ohio St. 285 (1938); Fleischmann Transportation Co.

v. Bishop, 12 Ohio App. 293, 294 (Hamilton 1919);

BERSESRERERERSREREE SES

and Youngberg v. Romeo, 457 U.S. 307, 321-323

(1982).

Respondent then denies, at p. 13, that peti-

tioners possessed the right to present evidence of

one of their employee's reputation for peace and

good order, after it was alleged that she assaulted

respondent's decedent while in the course and scope

of her employment, and, consequently, no depriva-

tion of the right to present such evidence oc-

curred. The rule in Ohio is that such evidence is

admissible. Lakes v. Buckeye Mutual Ins. Assn.,

110 Ohio App. 115, 118 (Jackson 1959). Petitioners

were, therefore, deprived of the benefit of the

rule.

The next rule of law which respondent denies

is in existence in Ohio, is one requiring expert

testimony to establish negligence of the nursing

home staff in the discharge of their various duties

to her decedent and to proximately link this al-

leged negligence to said decedent's claimed dam-

ages. As shown above, this rule does exist, and

-8-

SHEER ER ESERERZEE

has existed since at least 1919. Bruni; Ragone;

McKay Machine Co.; McCrory; Willett; Fleischmann;

Youngberg, all supra.

Finally, respondent denies that petitioners

were denied a charge to the jury on the issue of

punitive damages that correctly incorporates Ohio

law on the subject. The law in Ohio is that, in

order to be held liable in punitive damages, a de-

fendant's conduct must be proven to have been in-

tentional and deliberate, or have the character of

outrage frequently associated with crime. Detling

v. Chockley, 70 Ohio St. 2d 134, 137-138 (1982). A

review of the jury charge (which appears in the Ap-

pendix to the Petition in Exhibit E at the discus-

sion of Assignment of Error No. XXXII), reveals

that this rule was not applied in that charge.

Therefore, petitioners were, in fact, deprived of

the benefit and protection of the law by the courts

of Ohio in this regard.

The remaining assertions of deprivation by pe-

titioners, as well as the other such assertions

raised below (see Appendix to the Petition, Ex-

hibit E at the "Appendix to Case No. 46126"), were

not contested by respondent. When viewed together,

the pervasive and wholesale denial of Due Process

of Law and the Equal Protection of the laws by the

courts of Ohio becomes apparent. This reason, too,

for granting certiorari is therefore well-taken.

C.

Where this Court has decided that in cases

seeking redress for alleged violations of an

individual's liberty interest in safety in an

institution supported by Federal funds, a de-

cision regarding such safety, if made by a

professional (which includes a person compe-

tent, whether by education, training or ex-

perience, to make the particular decision at

issue) is presumptively valid, and liability

may be imposed only when the decision by the

professional is such a substantial departure

from accepted professional judgment, practice,

or standards as to demonstrate that the person

responsible actually did not base the decision

on such a judgment, may a state court impose

such liability without first requiring proof

of (a) the accepted professional judgment,

practice, or standard, and (b) the departure

therefrom?

The cases cited by respondent at pp. 16-18 of

her brief all predate this Court's 1982 decision in

Youngberg v. Romeo, supra. Regardless of what the

rule of law may have been as to the type and quan-

tum of proof necessary to establish liability on

the part of professional decision-makers (i.e., ad-

ministrators, nurses, therapists, aides, etc.) in

government-supported custodial care facilities,

this Court has now determined that such persons are

presumed to have acted validly until proof of a

substantial departure from accepted professional

BEES RES RERSRERSRERE SESE SE

\

judgment (i.e., expert testimony as to what "ac-

cepted professional judgment" is, and that the

petitioners’ judgment substantially departed there-

from) is adduced. Such standard is denied by res-

pondent and, in fact, was not applied by the courts

below, thus necessitating issuance of the requested

writ of certiorari to insure uniformity of deci-

sions on this Federal question.

CONCLUSION

For the foregoing reasons, and for the reasons

set forth in support of the Petition for Certio-

rari, petitioners respectfully request that the

Writ of Certiorari prayed for be granted.

Respectfully submitted,

fbi

AUBREY B. WILLACY, ESO.

WILLACY & LOPRESTI

700 Western Reserve Building

1468 West Ninth Street

Cleveland, Ohio 44113

(216) 241-7740

COUNSEL FOR PETITIONERS

CERTIFICATE OF SERVICE

I, Aubrey B. Willacy, Counsel for Petitioners,

Abbey Nursing Home, Inc., and Max Strauss, and a

member of the Bar of the Supreme Court of the Uni-

ted States, certify that on January Dts 1985, I

served three (3) copies of the foregoing Peti-

tioners' Reply Brief and Supplemental Appendix on

Counsel for Respondent, Nicholas M. DeVito, Esq.,

Nicholas M. DeVito & Associates, 1000 Terminal

Tower, Cleveland, Ohio 44113.

J.

rey B. Willacy, Esq.

Q.

A.

TRANSCRIPT OF RECORD OF FIRST TRIAL

IN COURT OF COMMON PLEAS, CASE NO. 988159,

CONTAINING THE DIRECT TESTIMONY OF

PLAINTIFF, VERNEDA BENTLEY

p. 0880

Why don't you tell us what you had to do for

her?

Starting from June 19, which was June 20th, I

called Seeley Medical Company. I think this

was the one company's name, and I informed them

of the situation and I asked for a hospital

bed, a hoyle lift, alifter. That's what they

used to be able to move her because she was

heavy, and pottychairs, tables, medical tables,

and I had an electric pump that ran 24 hours a

day for her air mattress, and electric air mat-

tress, sheepskin, clothes, gowns, because when

I got her, all her gowns and everything had

been —

A.

A.

Q.

A.

Q.

A.

MR. WILLACY: Objection.

— left.

THE COURT: Sustained.

— at the nursing home. She had to have -— I

had to buy all white linens for the hospital

bed because all her stuff had to be bleached

and disinfected. I had to have the room

painted. The carpet was taken out, a tile

floor installed in order to keep the place

clean. Oh, boy. So many things. I had to buy

pads, chuck pads that we bought by the cases.

Did she have to have a special kind of diet?

Everything, yes, I had to buy for her diet,

everything was no salt. I had to get a blender

because everything had to be blended.

How about her food?

Yes. I purchased all her food, even when she

went on an all liquid diet the last month,

everything. I took care of all, everything.

Q. How long did your grandmother live with you in

your home?

A. From June 2lst of 1978 until April l.

Q. Of what year?

A. Of 1979.

Q. Is that when she died?

A. Yes, at my home.

zee

Q. What else did you have to get for your grand-

mother's care?

A. With that Ensure, I had to have a feeding tube

and a syringe and the food was pumped into her

through her nose. The hospital put in a spe-

cial tube that was from her, from her nose down

into her stomach, and I had to inject food.

That was her food that had to be injected

through her nose to her stomach.

MR. WILLACY: Move to strike, your Honor.

THE COURT: Overruled.

Q. Now, each time she went for a hospital visit, I

think you testified she had to go by ambulance.

=) 7-

A.

Q.

Q.

A.

Yes.

Do you Know how much that cost?

$100 —

MR. WILLACY: Objection, your Honor.

THE COURT: She may answer.

$100 a trip.

Do you know how many trips were made to the

hospital?

Many trips.

Many trips?

Many trips.

And was it for the treatment of these particu-

lar injuries that we have been talking about

that were in the pictures?

MR. WILLACY: Objection, your Honor.

THE COURT: Sustained.

What were the treatments for?

MR. WILLACY: Objection.

THE COURT: She may answer.

Por the treatment of those injuries and also

her previous injuries.

-18-

Q.

A.

Q.

A.

Q.

A.

Q.

A.

Q.

A.

Q.

A.

Who is your oldest daughter, Verneda?

Trava.

How old is Trava?

She just turned 13, just turned 13 February

3rd.

Did Trava visit her great-grandmother with you

on several occasions - the nursing home?

Yes, on the average of four, five times a week,

three or four, five times a week.

And did Trava also help you in caring for your

grandmother when she was in your home?

Yes, she did.

What did Trava do?

Trava did — she helped clean her. She helped

Change her. She helped bathe her. She combed

her hair. She helped clean up her room. She

helped wash. She did everything from changing,

turning her over in bed, to cleaning her, to

everything, everything that I did.

She helped feed her?

Yes, she did.

Q.

A.

Q.

Q.

Q.

A.

Q.

A.

What did the visiting nurse do when she came?

She would take her blood pressure and take her

blood pressure, taking her blood pressure and

her temperature.

Was there any discussion from her about putting

Alma in a nursing home?

MR. WILLACY: Objection

THE COURT: Sustained.

Did Alma want to go back to a nursing home?

MR. WILLACY: Objection.

THE COURT: Sustained.

Who paid for these trips and this Seeley equip-

ment, the supplies? Who took care of that?

Did you?

Yes, I did. I made the arrangements for every-

thing to be taken care of.

And everything that was necessary for your

grandmother, you paid for it?

Yes, along with her Medicare, Medicaid, what-

ever.

p. 8806