Maryland Nursing Home Lawyer Blog

Earlier this month, the Supreme Court of Washington issued a groundbreaking opinion extending potential liability in a nursing home abuse lawsuit to nurses who were required to report discovered instances of nursing home abuse but failed to do so. In the case, Kim v. Lakeside Adult Family Home, the court determined that the Abuse of Vulnerable Adults Act (AVAA), a state-enacted law to protect the elderly, creates a separate cause of action against those who are required to report discovered instances of nursing home abuse but fail to do so.

Lonely Old WomanThe Facts of the Case

The plaintiffs in this case are the surviving loved ones of an elderly woman who was given a lethal dose of the pain-killer drug morphine. The drug was not prescribed by a physician but was administered by a nurse who was not a party to this lawsuit.

The defendants were two nurses who were not employed by the facility charged with caring for the deceased, and they were in no way responsible for her care. Both defendants were caring for another individual at the facility when they witnessed what appeared to be lapses in care. On March 28 or 29, one of the defendants witnessed the deceased lying on the floor. The defendant confronted the other nurse, who told the defendant that the patient “falls a lot” and that it was nothing out of the ordinary.

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Nursing homes should be places where people can feel at ease placing their aging parents to help them get the medical care and attention that they need in their final years. However, the reality of what nursing homes have come to become in our society is far from that. Partly since nursing homes operate on a for-profit model, the level of care provided to patients is secondary or tertiary to other concerns, including staffing costs.

Old HandsJust as in any other business scenario, nursing homes get what they pay for when they consider whom they should hire. By hiring inexperienced nurses or those with poor records or care, nursing homes may be able to save a few dollars in the short-term but place their patients at risk. Indeed, these are the very nurses who are likely to act in abusive or neglectful ways when placed under stress.

However, working in a stressful environment is no excuse to neglect or abuse another human being who has been placed in your care. For these reasons, the State of Maryland allows nursing home residents or their families to bring lawsuits against nursing home employees and management in situations in which the nursing home failed to adequately care for their loved one.

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Nursing homes that care for the elderly have an affirmative duty to provide for the basic needs of the residents for whom the home is charged with caring. This duty goes beyond a moral one, and it is actually legally imposed and enforceable by the courts. In fact, if a nursing home resident suffers any physical injury or psychological torment, the nursing home can be held legally responsible. Injured residents and their families may be entitled to substantial compensation based on the neglectful or abusive tendencies of nursing home staff.

hospital-bed-315869_960_720When the term nursing home neglect is thrown around, most imagine a busy nurse failing to attend to every need of their patients. Perhaps the nurse leaves a soiled diaper on a resident for too long, or delivers a meal later than desired. However, the truth about nursing home abuse is much more terrifying.

A Horrific Example of Nursing Home Neglect

Earlier last month, eight employees of an elderly care facility not far from Manchester, England were charged with the neglect of a patient. According to one local news source covering the disturbing story, the eight charged included the owner of the facility as well as the person responsible for keeping the man’s room clean.

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Nursing home abuse is a tragic phenomenon, and everything should be done to curb it. Whether it be an overworked nurse who snaps at a difficult resident, or an angry employee who takes out their own aggression on those who cannot fight back, there is no excuse for engaging in nursing home abuse. However, the sad reality is that nursing home abuse is grossly underreported, with many residents afraid to report the abuse of those who are responsible for their daily care out of fear of reprisal.

broken-glasses-1-1316764Despite that fact, one state is considering a bill that would eliminate a person’s ability to anonymously report nursing home abuse. According to an article by U.S. News and World Report, Illinois legislators are considering a bill that would require each complaint of nursing home abuse to be accompanied by the reporter’s name. If the person calling does not want to provide their name, the report will not be filed.

Of course, doing away with anonymous reporting will limit the number of complaints of abuse, which is why the nursing home industry is in favor of the bill. In fact, about 20% of all abuse allegations currently reported are done so through anonymous calls. While the bill’s sponsor claims that the names of reporters would be held confidential, the mere fact that callers are require to disclose their identity will likely result in fewer calls.

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Earlier this month, an appellate court in California issued an opinion in a case brought by the family of a man who died while in the care of a hospital, holding that the lower court’s dismissal of the complaint was in error. In the case, Fenimore v. Regents of the University of California, the court determined that the plaintiffs made sufficient allegations to survive the pre-trial dismissal stage, and the lower court erred when it dismissed the plaintiffs’ elder abuse claims.

hospital-7-1518169Pre-Trial Dismissal Is Rarely Appropriate

In many personal injury cases, the defendant will file a pre-trial motion for summary judgment, asking the court to dismiss the case because the plaintiff’s case is insufficient as a matter of law. These motions, if granted, will result in the dismissal of the plaintiff’s case, and the plaintiff will be prevented from recovery. However, these motions are rarely successful, given the standard with which the court must consider them.

Summary judgment motions must consider the evidence in the light most favorable to the non-moving party. In the case of a motion filed by the defendant, this means that the court should assume that the plaintiff can prove everything they claim happened in their pleadings. In other words, the quality of the evidence or the credibility of the witnesses is not a factor.

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Earlier this month, the Arkansas Supreme Court issued an opinion dismissing what may have been a meritorious wrongful death case based on the fact that the document giving the plaintiff power of attorney was not validly executed. In the case, Quarles v. Courtyard Gardens Health & Rehab, the lower court dismissed the plaintiff’s case based on two reasons, one of which was the fact that the power of attorney document was notarized after the decedent had signed it, rather than simultaneously, as the law requires.

document-428331_960_720The Facts of the Case

Bernie Jean Quarles, the decedent, spent 11 months at the defendant nursing home before she was moved to another facility. In June 2010, Quarles allegedly executed a power of attorney document in favor of her son, the plaintiff. A short time later, while his mother was still alive, the plaintiff filed a lawsuit against the defendant nursing home on behalf of his mother, whom he claimed was “incapacitated.” The lawsuit alleged that the nursing home’s negligence resulted in the woman’s deteriorating health.

When the man’s mother died a few months later, he sought to substitute himself as the primary plaintiff. The parties were ordered to engage in arbitration to see if they could reach a mutually acceptable result. As a part of the mediation, the parties exchanged discovery. However, before arbitration began, the defendants asked the court to dismiss the case based on the fact that the power of attorney was never validly executed.

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The thought of a nurse who is charged with the care of elderly individuals engaging in a pattern of abuse against his or her patients is bad enough, but lately there has been a rash of cases in which abusive nurses are filming the abuse and posting the videos on social media. The victims in these videos are almost always mentally or physically ill nursing home residents who do not have the ability to fight back or even to ask their abusers to stop.

home-office-336373_960_720Of course, this kind of conduct is a violation of the duty of care that all nurses have to their patients. In fact, this duty of care extends beyond just licensed nurses and applies to anyone charged with the care of another person in a skilled nursing facility. When this type of abuse is discovered, the abused individual or their family may be able to seek financial compensation for the abuse and humiliation suffered through a Maryland nursing home abuse lawsuit.

Politicians Condemn Nursing Home Abuse, Seeking More Prosecutions

Aside from being a violation of the duty between caretaker and resident, nursing home abuse is also against the law. In fact, according to one news report, the Chairman for the Senate Judiciary Committee has been probing the U.S. Justice Department about how aggressively it pursues cases alleging nursing home abuse that has been posted on social media.

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When a nursing home employee’s negligent, reckless, or intentional actions result in the death of a resident, the family of the deceased resident may want to seek justice on behalf of their loved one. This is done through a Maryland wrongful death lawsuit.

hospital-585357_960_720Wrongful death lawsuits are similar to traditional negligence lawsuits, but require proof of one additional element: the relationship between the parties. In Maryland, only certain parties can bring a wrongful death case against a negligent or abusive nursing home employee. These are call “primary beneficiaries” and include the “wife, husband, parent, and child of the deceased person.”

However, sometimes there will be no primary beneficiary available to bring the lawsuit. In such cases, the law allows for a secondary beneficiary to proceed with the case. A secondary beneficiary is “any person related to the deceased person by blood or marriage who was substantially dependent upon the deceased.” Of course, this is more difficult to prove than a simple blood relation, because it requires establishing substantial dependence. In some states, if no primary beneficiary exists, then the case will be brought by the deceased’s estate.

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Abusing an elderly nursing home resident is a disgraceful act that is clearly in violation of a resident’s rights. Indeed, such conduct can result in both civil and criminal liability. In most cases of nursing home abuse, the criminal case will proceed to trial before the civil case. This can help the families of abused residents who are considering filing a claim against the nursing home because much of the investigation will already have been completed by the authorities. In addition, if the criminal case against the nursing home is particularly strong, this may incentivize the facility to consider a substantial settlement and keep the case from going to trial where even greater damages may be awarded.

gavel-1017953_960_720When a nurse is found guilty or pleads guilty to a criminal offense involving the abuse of a resident, that will not automatically mean that the resident or the resident’s family is entitled to monetary compensation. A criminal prosecution is brought by the government, and seeks to implement a punishment against the nurse or facility. This may involve time in jail, probation, or a substantial fine. While a criminal court can order some restitution, it would not likely be a significant amount.

A civil case, on the other hand, is brought by those personally affected by the nurse’s conduct, and seeks monetary compensation for the physical and emotional injuries caused by the abuse. These cases, if successful, can result in significant monetary judgments against nursing home management, especially if punitive damages are sought and proven.

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When the phrase “nursing home negligence” is mentioned, it often conjures images of cruel, sadistic nurses intentionally failing to provide a nursing home resident the level of care necessary for them to live a peaceful life. However, the law does not require this kind of mindset in order to find a nursing home or nursing home employee legally negligent for the care provided to a resident.

hospital-736568_960_720Under the legal theory of negligence, which is the applicable theory in almost all nursing home cases, a plaintiff need only prove that a duty of care that was owed to the resident was violated and that this violation resulted in the resident’s injuries. This does not necessarily require any ill intent on the part of the nurse, although evidence of such intent will likely satisfy the requirement.

More often than not, however, nursing home negligence cases proceed on just negligence. It may be that a nurse tries to take on a job that two nurses should handle. Or perhaps a nurse is overworked and is not provided a break for an entire 12-hour shift and forgets to attend to a certain resident. In these cases, while the nurse may have the best intentions in mind, the level of care provided was not that which is expected or required in the nursing home context. And therefore, that nurse – or the nurse’s employer – may be found to be liable in a nursing home negligence lawsuit.

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