Colorado Nursing Home and Abuse Cases
Civil Rights and Other Important Cases

Nursing home and other Health Care Cases

Hise et al v SSC Submaster Holdings, LLC et al, Denver District Court Civil Action, 2009 CV 600.

In this law reform case, on behalf of all nursing home residents in the State of Colorado, we brought a statewide class action lawsuit in Denver District Court, alleging that the State’s policy of permitting nursing homes to obtain and maintain licenses – without procuring and maintaining liability insurance compliant with the Health Care Availability Act (“HCAA”) or obtaining proper approval for proposed alternative forms of security in accordance with Division of Insurance (“DOI”) regulations – had the effect of wiping away the guarantee of financial responsibility owed to the plaintiffs and many other frail vulnerable nursing home residents throughout Colorado who were similarly situated.

As a result of this lawsuit, on October 15, 2009. the State formally withdrew its prior policy and issued a new policy establishing financial responsibility compliance requirements for all health care institutions that are required by law to demonstrate compliance with the HCAA. 

This case has since been nominated for consideration by the Colorado Trial Lawyers’ Association’s for Case of the Year.

Lujan v. Life Care Centers of America. 222 P.3d 970 (Colo. App. 2009).

In this case of first impression, the Colorado Court of Appeals upheld a District Court’s decision rejecting arbitration and allowing our wrongful death case to proceed to trial. The Court held that a medical proxy appointed after a nursing home resident became incompetent could not sign an agreement to arbitrate any nursing home claims. The Court also significantly held that, under Colorado law, the decision to arbitrate is not a medical treatment decision. See the Court of Appeals decision.

Kilbourne et al. v. O’Hara Rehabilitation Center.

This Denver District lawsuit resulted in the plaintiffs obtaining a 30 million dollar damages judgment in 2001, following arbitration with undisputed liability on behalf of some of the plaintiffs. The case was later confidentially settled after a second round of litigation involving bad faith litigation against CNA, one of the involved insurance carriers. The District Court also recognized the plaintiffs’ claim that the Colorado Consumer Protection Act applied to nursing homes with respect to representations publicly made as to the quality and amount of care that will be provided to each resident.

Jahn ex rel. Jahn v. ORCR, Inc. 92 P.3d 984 (Colo. 2004).

We actively assisted in the preparation of all briefs in this writ to the Supreme Court challenging the dismissal of damage claims by nursing home residents who had been members of an earlier class action for injunctive relief to enforce promised staffing levels against O’Hara Rehabilitation Center that we handled in the Kilbourne case. This class action was mooted with the closure of the facility under the weight of regulatory pressure. The Supreme Court held that the dismissal of the resident’s claims, even though they had never been notified of the former class proceeding nor provided an opportunity to intervene or request exclusion from the class, violated due process. All claims were ordered reinstated.

In Re Estate of Michael Patrick Smith v. Heckler, 747 F.2d. 583 (10th Cir. 1984).

This class action successfully challenged the former paper compliance focus of the Medicaid nursing home inspection system and resulted in an order compelling the U.S. Secretary of Health and Human Services to implement the current resident-focused inspection system nationwide. The case also helped lead to the passage of OBRA 87, the national Nursing Home Reform Act. United States District Court Judge Matsch supervised the implementation of this reform, invalidating government proposals several times, and finally holding the Secretary of Health and Human Services in contempt of court in a published opinion, which led to complete government cooperation with the national inspection system change. See the decision of the 10th Circuit Court of Appeals. On the damages side of the case, after years of litigating with the former owners in bankruptcy, the surviving disabled and elderly residents of Heritage House Nursing home divided a several million dollar insurance settlement which permitted a number of them to buy their own homes and live independently. This case was also the subject of a Warner Brothers Sunday Night TV movie called When you Remember Me, which starred Kevin Spacey and Fred Savage.

Rogers v. Atencio, 608 P.2d 812 (Colo. App. 1979).

This state-wide class action resulted in the judicially mandated creation and maintenance of the first home care program in Colorado.

Duc Van Le v. Ibarra, 843 P.2d 15 (Colo. 1992).

This state-wide class action resulted in the creation of home care services eligibility for persons suffering from mental illness. Prior thereto, only the elderly and physically disabled were being included in Colorado's home care program.

Kohn v. Julia Temple. 170 F.R.D. 474 (D. Colo. 1996).

This case resulted in a substantial settlement for a group of nursing home residents and also established the right of groups of nursing home residents to join together in a single lawsuit arising out of a common nucleus of operative facts. It also established the right of such residents to have access to facility incident reports.

Osment v. Heritage Rehabilitation Center.

This Denver District Court group case resulted in a substantial settlement for 11 nursing home residents.

Bowie v. Denver General Hospital. 78 M 1186 (D. Colo.)

This class action resulted in an injunction preventing Denver General from collecting 18 million dollars in bills because it had completely failed to program into its billing system a state mandated ability to pay scale.

Civil Rights and Other Significant Cases

Garcia v. Board of County Commissioners for Mesa County, et al. 09 CV 01128 – JLK-LTM (D. Colo. 2009).

This case challenges permanent, life altering injuries inflicted with alleged deliberate indifference by jail personnel and private health providers, as well as indifferent governmental policies on a diabetic inmate in the Mesa County Jail Detention Center. Plaintiff Garcia was admitted to the jail with a history of toe amputation. Jail nurses and sheriffs were fully aware of his chronic diabetic condition and of this amputation. To accommodate his missing big toe, Mr. Garcia had been prescribed special diabetic shoes. At the time of his incarceration, he was wearing those shoes and he explained to the workers that he had an urgent medical need for those shoes to prevent the development of new ulcers. With no medical justification and with deliberate indifference to his known serious medical needs, staff confiscated his diabetic shoes, causing him to promptly develop an ulcer on the bottom of his foot, resulting in a transmetatarsal amputation of his foot. He is now unable to work at his previous job as a machinist and is suing for damages, including punitive damages, and to reform Jail and Health Care Provider Policies for the care and treatment of diabetics in the Mesa County Detention Center.

Thomason v City & County of Denver, et al., Civil Action No. 1:07-cv-01715-MSK-MJW (D. Colo 2007.)

Mr. Thomason was arrested for an allegedly expired license to cultivate marijuana. He was unlawfully abused, mistreated, neglected and wrongfully imprisoned while a pre-trial detainee in the Denver Jail. Mr. Thomason cannot go without his pain and anxiety medicines as a result of his cancer, and brought his medications with him to the jail. Plaintiff was then unconstitutionally denied access to his medications despite valid prescriptions for their use by a nurse, pursuant to a deliberately indifferent jail policy, co-administered by The Sheriff and Denver Department of Health and Hospitals, which jointly prohibited all narcotics in the jail. As a result of the confiscation of his medications, Mr. Thomason suffered an excruciating night of pain and had a seizure.

After being released on his own recognizance, a deputy sheriff wrongfully and illegally kept Mr. Thomason in jail for hours from after he was to be released.

We brought claims on behalf of Mr. Thomason under 42 U.S.C. § 1983 for denial of life, bodily integrity, and liberty rights under the 14th Amendment, and for violation of rights not to be subjected to unlawful arrest or illegal detention.

A substantial settlement was achieved, and the case was a poignant cover story feature entitled "Pain Management" in Westword and the City and County of Denver agreed to revised its jail narcotics policy to ensure that prisoner patients requiring such medications receive them, and that officers can no longer hold prisoners after they have been judicially ordered released.

Miales v. McDonald's Restaurants of Colorado, Inc.

Federal District Judge Walker Miller denied motion to summary judge this punitive damages race discrimination claim under 42 U.S.C. § 1981 for an alleged refusal by a McDonald's manager to sell food to or serve an African-American family. The Court held that the plaintiffs' showing of their humiliating public racial verbal assault required a jury trial concerning the company's intent to racially discriminate against them by interfering with their "same right as is enjoyed by white citizens" to make and enforce contracts. See the Federal Court Ruling in this case.

Guantanamo Bay Litigation

We represent detainees who have been held for several years in Guantanamo Bay without being criminally charged and without access to Courts. We have filed habeas corpus proceedings for each of our clients.

In so doing, we have joined with what is now several hundred lawyers from large and small practices all over the country to represent the almost 300 prisoners remaining in this "prison beyond law". We have now been to Guantanamo Bay several times.

In 2007, we traveled to Mauritania, in northwest Africa, to engage in negotiations with the Mauritanian government and candidates running for president on behalf of two of our Guantanamo clients. In September 2007, Mohammed Al Amin was released from Guantanamo Bay and flown home. He is now living free. We have written an article about this case, which was just published in a book entitled: The Guantanamo Lawyers Inside a Prison Outside the Law, Edited by Denbeaux and Hafetz and published in November, 2009 by New York University Press. Please see the "Other Resources and Info" page for more articles about our work at Guantanamo.

North et al v. Gilpin County, et al.

Just under a million dollar settlement, accompanied by a written apology, for two first amendment protected whistleblowers who were fired after they publicly exposed malfeasance in the handling of government moneys by the Gilpin County Assessor’s office, which also resulted in the Assessor’s conviction for malfeasance and forced removal from office.

Atlantis v. Adams, (D. Colo.)

This federal class action against RTD to mandate the equipping of all new buses with wheelchair accessible lifts resulted in a settlement on appeal in which RTD agreed to retrofit the well over 200 buses at issue in the lawsuit with lifts. RTD and Denver have both gone on respectively to become the most accessible transit and metropolitan areas in the nation.

Roy Smith v. Gilpin County, 949 F. Supp 1498 (D. Colo. 1996)
This was an extraordinary case of alleged racial hatred and abuse, and government indifference and discrimination. The case was featured on a Friday night 20-20 by Barbara Walter’s called Roy Smith’s America. It was also the subject of a documentary film by Jerry Kulhman shown at the Denver Film Society that was called Roy Smith. See a Denver Post article about the Roy Smith Case and the Federal Court decision.

Johnson v. Jefferson County Board of Health, 662 P.2d 463 (Colo. 1983), Johnson v. District Court, 674 P.2d 463 (Colo. 1984).

This was a case about the firing of a public health officer for uncovering the leaking of plutonium from the Rocky Flats Nuclear Weapons Plan and publicizing the same, forestalling the development of the northern third of Jefferson county. This case was twice heard by the Colorado Supreme Court, with the court first strongly adopting the First Amendment Constitutional principle that workers cannot be terminated for whistle blowing in the public interest, and then setting the test for disqualification of judges for civil cases. See the Johnson decision establishing whistleblower rights and the Johnson decision setting the standard for disqualifying judges in civil cases.

Popovich v. Irlando, 811 P.2d 379 (Colo. 1991).

This landmark case established that co-workers in Colorado can sue each other for sexual and racial harassment or discrimination or other outrageous conduct on the job without being barred by the Worker’s Compensation exclusivity rule. See the Popovich decision by the Colorado Supreme Court.

Medina v. City and County of Denver, 960 F 2d 1493 (10th Cir. 1992)

This case established for the first time in Colorado that recklessly indifferent or shockingly abusive high speed chases by police are actionable under the Federal Civil Rights Act.

Daigle v. Shell, 972 F. 2d 1527 (10th Cir. 1992).

This case involved the adoption of strict liability principles for the first time in an environmental pollution case in Colorado.

Brunnetti v. I.R.S. 999 F. Supp. 1408 (D.Colo. 1998)

In this case, the Court recognized the right of an I.R.S. revenue agent to sue a co-worker supervisor for outrageous sexual harassment.

ISKCON v. United Pentecostal Church.

Obtained an injunction in Denver District Court against church leaders who felt they had a right to interfere with the distribution of religious literature at the airport by an Indian religious group. The church leaders were held in contempt twice before they complied.

El Fujitivo v. City of Westminster et al (D.Colo.)

Obtained an injunction and $500,000 in damages against the City of Westminster for racially targeting a Hispanic nightclub and its clientele.

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