McLain v. Mariner Health Care Inc.

The trial court's construction of the plaintiff's complaint as alleging private causes of action under the Medicaid and Medicare statutes and the grant of the defendant's motion to dismiss on that ground amounted to an advisory opinion on a matter not in actual controversy, since the plaintiff did not attempt to set forth private causes of action under the statutes.

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Judy McLain appeals from the trial court’s grant of a motion to dismiss her claims in negligence arising from her father’s residence and death in a nursing home owned and operated by Mariner Health Care, Inc. Mariner. Since we find that the trial court had no basis for dismissing these claims, we reverse. The record shows that McLain sued Mariner for injuries suffered by and the wrongful death of her father, a resident of a nursing home owned and operated by Mariner. The complaint alleged that as a result of the nursing home staff’s violations of a variety of federal regulations and state statutes and regulations concerning nursing home care, including those promulgated under federal Medicare and Medicaid programs1 as well as the Georgia Bill of Rights for Residents of Long-term Care Facilities2 and public health rules of the Georgia Department of Human Resources,3 McLain’s father developed pneumonia, suffered complications, and died. The complaint asserted liability under eleven counts, including negligence, negligence per se, violations of the Fair Business Practices Act,4 and violations of the Deceptive Trade Practices Toward the Elderly Act.5 Mariner filed a partial motion to dismiss as to these four counts. The trial court granted Mariner’s motion as to all four claims, with the exception of any claim based upon the Bill of Rights for Residents of Long-Term Care Facilities, and also granted a certificate of immediate review. We granted McLain’s application for interlocutory review.

On appeal, McLain does not contest the trial court’s dismissal of her counts under the Fair Business Practices Act and the Deceptive Trade Practices Toward the Elderly Act. Instead, she asserts that the trial court ruled on a matter not in actual controversy when it held that “to the extent that the Complaint could be construed to assert claims created by the Medicare and Medicaid statutes, such claims are dismissed,” and that it erred in dismissing the negligence per se and negligence claims.

McLain v. Mariner Health Care Inc.

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