The POWER 30: Mark Kosieradzki and Joel Smith

Kosieradzki Smith Law Firm LLC

Nursing homes have been on the front lines of the Covid-19 war, and Mark Kosieradzki and Joel Smith have made nursing home litigation their calling.

One thing that stood in their way is Minn. Stat. 573.01, which denied survivorship of a claim if the plaintiff dies in a way that is unrelated to the tortious wrongful conduct. Forty-five other states preserve the cause of action, Smith said. The statute, referred to as abatement, has been criticized by the Court of Appeals and the Supreme Court but has stood up to efforts to amend it.

However, at Minnesota Lawyer’s deadline the law was amended and on the governor’s desk to add such a claim. Gov. Tim Walz was expected to sign it.  It will make a big difference in many cases.

The death of an elderly nursing home resident could have relieved the institution of any liability for a heinous rape.

An 88-year-old woman was raped by a staff member and her case settled, Had she died before her case was settled, the nursing home would have escaped accountability for her injury, Koseradzki said. The case illustrates why the abatement law was changed, he and Smith said.

In Pivec v. All Temporaries Midwest, Inc., the lawyers represented a 100-year-old woman injured when she was dropped from a shower chair. Smith subpoenaed records from the Minnesota Department of Health, but the federal government stepped in to quash the subpoena, asserting authority under Medicare and removing the case to federal court.  U.S. District Court Judge Donovan Frank denied the motion to quash and sent the case back to Hennepin County.

In Privec, U.S. District Court Judge Donovan Frank said the court would not replace Minnesota law with federal law where there was no reason to believe the state, Congress, or federal agencies expected it. It would also violate the independent sovereignty of the States pursuant to the Tenth Amendment, he said.