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Bonezzi Switzer Polito & Hupp Co. L.P.A. Congratulates William D. Bonezzi 2017 Selection of Florida Super Lawyers Magazine

William D. Bonezzi


CMS Reverses Itself; New Proposed Rule Allows Pre-Disoute Binding Arbitration Agreements for Long Term Care Facilities and Residents

In a reversal of its proposed Final Rule published on October 4, 2016, The Centers for Medicare & Medicaid Services (CMS) announced on June S, 2017 it no longer is seeking to ban pre-dispute binding arbitration agreements between long term care facilities and its residents. In its announcement, CMS noted the following factors in reversing its position:

  • A lawsuit filed by the American Health Care Association and some nursing home companies that resulted in a preliminary injunction by a federal district court against the regulation prohibiting pre-dispute arbitration agreements. The district court noted the proposed rule likely violated the Federal Arbitration Act (FAA), 9 U.S.C. 1 et seq.
  • CMS also decided to review the proposed rule in light of the January 30, 2017 Executive Order "Reducing Regulation and Controlling Regulatory Costs (E.O. 13771)."
  • With this new review, CMS decided that a blanket prohibition on pre-dispute binding arbitration agreements was too broad.

CMS' new proposed rule would allow pre-dispute binding arbitration agreements, including those that make signing the agreement a condition of admission, with the following requirements:

  • The agreement is in plain language.
  • It must be included in the admissions agreement in plain writing if a condition of admission.
  • The agreement must be explained to the resident and/or representative.
  • The resident must acknowledge in writing that he or she understands the agreement.
  • There cannot be a prohibition in speaking with federal, state and local officials or an ombudsman.
  • The agreement must be maintained and any arbiter's final decision for five years.
  • The facility must post that it uses binding arbitration agreements in a place residents and visitors can see.

The new rule will be published in the Federal Register on June 8, 2017. The comment period will end on August 7, 2017. BSPH lawyers have prepared language and developed strategies for admission agreements to include binding arbitration that will comport with the proposed final rule.

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Bonezzi Switzer Polito & Hupp Co. L.P.A. is pleased to announce that Diane L. Feigi and Edward D. Papp Have recently joined the firm in the Cleveland office

Diane L Feigi and Edward D


Bonezzi Switzer Polito & Hupp Co. L.P.A. congratulates Steven J. Hupp and Margo S. Meola on obtaining a dismissal with prejudice after a two week trial in Trumbull County

Steven J Hupp Steven J Hupp
Margo S Meola Margo S Meola

BSPH congratulates Steven J. Hupp and Margo S. Meola on obtaining a dismissal with prejudice (without any settlement) for an Emergency Medicine physician in Trumbull County Common Pleas court. Plaintiff was a sixty-six-year-old man who was a patient in a Rehabilitation Hospital following a hip replacement surgery. Plaintiff claimed that the co-defendants were negligent for failing to properly treat the patient’s severe constipation which caused a fecal impaction and a small bowel obstruction. Plaintiff further claimed that the descendant’s cause of death was septic shock.

Plaintiff alleged that the E.M. physician was negligent for not ordering antibiotics when the patient presented to the E.D. and for not providing aggressive fluid resuscitation. The patient suffered a fatal arrhythmia in the Radiology department after completing an abdominal series.

After a two-week trial, and after the BSPH client’s direct examination, plaintiff dismissed the E.M. physician with prejudice.

Under Ohio law, the jury completed Interrogatories as to all parties whether they remained in the case or had been dismissed. The jury returned a unanimous verdict in favor of the E.M. physician, finding that he met the standard of care.

The jury then returned a $3,000,000 verdict for the plaintiff and against a co-Defendant Rehabilitation Hospital.


Bonezzi Switzer Polito & Hupp Co. L.P.A. Congratulates Paul W. McCartney 2017 Selection of Super Lawyers Magazine 2017 Top 50 Cincinnati 2017 Top 100 Ohio

Paul W mcCarney


Bonezzi Switzer Polito & Hupp Co. L.P.A. Congratulates Bret C. Perry 2017 Selection of Super Lawyers Magazine 2017 Top 50 Cleveland 2017 Top 100 Ohio

Brett C Perry


Bonezzi Switzer Polito & Hupp Co. L.P.A. Congratulates Beth A. Sebaugh 2017 Selection of Super Lawyers Magazine 2017 Top 25 Women Cleveland 2017 Top 50 Women Ohio

Beth A


Bonezzi Switzer Polito & Hupp Co. L.P.A. 2017 Super Lawyers and Rising Stars

SuperLawyers


BSPH congratulates Steven J. Hupp and Jason A. Paskan on obtaining a unanimous defense verdict for an Emergency Medicine ("E.M.") Physician in Mahoning County Common Pleas court. Plaintiff was a fifty-year-old man who presented to the E.R. with chest pain and shortness of breath. The E.M. Physician diagnosed the patient with Acute Coronary Syndrome and sought a Cardiology consult in the E.R.

The patient underwent a cardiac catheterization the next day and was discharged to home. He died of a massive Pulmonary Embolism five days after his discharge from the hospital.

Plaintiffs estate sued the E.M. Physician, the Hospitalist and the Cardiologists. Plaintiff claimed that all the defendants were negligent for failing to properly diagnose and treat the patient's alleged Pulmonary Embolism.

At trial, the defense team established that the E.M. Physician met the standard of care. The defense team also presented the testimony of a Forensic Pathologist on the issue of proximate cause. The Forensic Pathologist testified that the patient did not have a Pulmonary Embolism in the E.R. because these emboli were not seen at autopsy.

After a two-week trial, the jury returned a unanimous verdict in favor of the E.M. Physician, finding that he met the standard of care. The jury also found in favor of the co-defendants.

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BSPH would like to congratulate Bret C. Perry and Ronald A. Margolis on their unanimous defense verdict in a medical malpractice action pending in Cuyahoga County, Ohio. Plaintiff, a married 48 year old male, employed as a Shift Supervisor earning in excess of $100,000, suffered bilateral below the knee amputations while under the care of the Defendant Vascular Surgeon. Plaintiff claimed that the Defendant was negligent in waiting over three days to intervene in the presence of acute limb threatening ischemia. Further, Plaintiff alleged that had the Defendant timely intervened, he would not have suffered bilateral below the knee amputations. Plaintiff offered expert testimony from a Vascular Surgeon asserting that the Defendant was negligent in failing to immediately order vascular studies and in failing to proceed to surgery. Plaintiff also offered vocational and economic expert testimony establishing economic damages in excess of $4,000,000.

Attorneys Perry and Margolis countered the assertions of Plaintiff offering expert testimony from a Harvard trained Vascular Surgeon establishing that Plaintiff was not suffering from an acute ischemic event, but rather a chronic ischemic event that only required medical therapy. Further, the defense established that in retrospect, Plaintiff was likely suffering from an extremely rare clotting disorder that was not amenable to traditional therapies and earlier intervention would not have altered the outcome. The jury returned its verdict in approximately one hour finding that the standard of care was met in all respects.

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