THIS OPINION HAS BEEN VACATED

Yet another case involving a long-term care facility.

Plaintiff’s decedent was an elderly patient in Defendants’ care following successful tumor surgery at another hospital. She died in Manor Care of sepsis caused by a number of underlying problems.  Plaintiff’s claims included a count under the Adult Protective Services Act. Defendants obtained summary judgment on that, arguing that the decedent’s age and status had nothing to do with it, that this was at best a malpractice case and not one involving neglect or abuse of a vulnerable person. They also moved for summary judgment on the malpractice claim, though, and the trial court apparently granted it, for reasons not given in the opinion. (The opinion says that “the motion for summary judgment . . . sought dismissal” of the claim and that the claim was “dismissed”, so its not clear what happened nor that the Court of Appeals knows there’s a difference.) Plaintiff appealed.

Defendants’ first argument on appeal was that the judgment on the malpractice claim barred appeal of other negligence claims because of claim preclusion. Yes, you read that right: an issue lost in the trial court couldn’t be appealed because, you see, losing it made it res judicata. Plaintiff must have pointed out that res judicata applies to successive cases because Defendants then cited, as “supplemental authority”, cases holding that it can, too, apply in the same case – when judgment for an agent bars a vicarious claim against the principal.  The court holds that that doesn’t apply here. (We don’t understand why courts continue to allow “supplemental authority” to mean “old cases you wish you’d cited now that you see what your opponent as to say.”)

On the substantive claim the court relies on McGill (2002), which concluded that the statute wasn’t intended to apply to negligence that could happen to anyone, incapacitated or not. It set forth the elements of the claim, including that the negligence “must be related to the problem or problems that caused the incapacity.” The court, reviewing the record, decides, apparently, that there was a question of fact as to whether the decedent could have or would have gotten adequate care for her sepsis if she hadn’t been incapacitated by her tumor surgery, or something along those lines. From what the court tells us of the facts there may indeed be a statutory claim here separate from plain negligence but the court’s discussion doesn’t do much to explain the distinction nor how the McGill factor survives this sort of analysis. In any event, reversed and remanded.

We recently praised Newman for minimizing the use of “APSA.” Delgado uses the acronym 19 times, so its author either hadn’t read our blog or else had and was expressing an opinion of it.

Those who like acronyms also tend to like footnotes; their use here is liberal, with the usual degree of precision. One footnote briefly mentions, for example, that the decedent had been hospitalized for tumor surgery; another tells us (we think, it’s not clear) that the trial court gave some sort of judgment on the negligence claim. Its nice that the opinion mentions, at least in footnotes, the basis of Defendants’ two arguments. And a footnote tells us that the court won’t address Defendants’ claim that Plaintiff hadn’t shown “neglect” because “establishing such a claim is unnecessary to render the grant of summary judgment improper.” What does this obscure double-negative mean? That neglect isn’t necessary? That the evidence raised a question of the other statutory possibilities, “abuse” or “exploitation”? That the summary judgment was on the “incapacitated” issue and that the “neglect” issue is somehow not properly presented? Or does it have a perfectly logical and reasonable meaning that suffers only from not being expressed in English?

The acronym/footnote folks are also commonly affected by shiny-new-toy syndrome. The opinion tells us (in a footnote, naturally) that “claim preclusion” means “res judicata” and that it will use the former, “more modern” term. We wonder how many more decades will pass before those who like the term realize that they must either declare victory or admit defeat. Using a newer term that they (accurately) feel they must for clarity’s sake, after many years, still  define using an older term is just silly. Use one or the other, kids. As for which to use, what we said here still applies.

(Opinion: Delgado v. Manor Care)