Tortious Interference With Contractual Relationship Claim Most Recent Possible Remedy Nursing Homes can Employ Against Children of Nursing Home Residents

Even in the absence of filial responsibility laws, nursing homes have employed an array of legal actions against resident family members for unpaid nursing home bills, and state courts have, by and large, accommodated the nursing homes in their efforts.  In an example of the most recent effort, a New Jersey court of appeals has approved a nursing home making a tortious interference with contractual relationship claim against a discharged resident's son after the son refused to move his mother out of the nursing home or allow her to discuss her removal with nursing home staff. See, The Orchards at Bartley Assisted Living v. Schleck (N.J. Super. Ct., App. Div., No. A-3481-17T1, March 13, 2019).

 Patrick Schleck, was agent  under a power of attorney for his mother Patricia Schleck. Ms. Schleck entered a nursing home and signed a resident agreement that stated that if she did not have sufficient funds to pay the nursing home fees, the nursing home could discharge her. Ms. Schleck applied for Medicaid benefits. While the application was pending, the nursing home issued a discharge notice to Ms. Schleck for unpaid charges. Mr. Schleck refused to move his mother out of the facility and allegedly told her not to participate in discussions with the nursing home staff about her discharge. Ms. Schleck eventually qualified for Medicaid, but the nursing home did not accept Ms. Schleck as a Medicaid resident, and she was forced to leave the facility.

The nursing home sued Mr. Schleck for breach of fiduciary duty and tortious interference with contractual relationship, seeking to recover fees that were not covered by Medicaid. Mr. Schleck filed a motion to dismiss, which the trial court granted. The trial court reasoned that even if Mr. Schleck engaged in the behavior alleged, it didn't satisfy the improper and unjustified elements of the breach of fiduciary duty or tortious interference claims. The nursing home appealed.

The New Jersey Superior Court, Appellate Division, affirmed the dismissal of the breach of fiduciary duty claim, but allowed the tortious interference with contractual relationship claim to continue. The court noted that there is a balancing test to determine whether someone "intentionally and improperly interferes with another's prospective contractual relationship." The court ruled that Mr. Schleck's behavior in refusing to move his mother and discouraging her from discussing removal with the nursing home "may satisfy the unjustified element under this balancing test." According to the court, "Mr. Schleck's conduct may have been intended to benefit Mr. Schleck and to injure [the nursing home]."

Of course, it is possible that the nursing home won't prevail on its claim.  One assumes that the Mr. Schleck will argue that his action was justified, and that he never considered the nursing home in trying to protect his mother's care and residence.  Regardless, the nursing homes have yet another arrow in their quiver of possible legal remedies against family members of senior residents when Medicaid does not fully compensate the nursing home for care.