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More and more Maryland nursing homes are having their residents sign arbitration agreements, raising concerns for victims of nursing home injuries, abuse and negligence. Arbitration agreements force residents to settle disputes with the nursing home through arbitration, a private and confidential process with no possibility of appeal, rather than having the option to bring a civil negligence suit in court. Essentially, by signing an arbitration agreement, which may or may not be obvious and apparent in the nursing home’s contract and forms, Maryland residents may be waiving their right to sue if something goes wrong.

Arbitration agreements come in many forms, however, and just because a resident signed one does not necessarily mean that they have unequivocally waived their right to sue. Many arbitration agreements dictate a specific type of claim that must be settled in arbitration, leading to eventual disputes over whether or not a plaintiff’s claim falls into that category. For example, a state appellate court recently issued an opinion considering such a dispute in a wrongful death and negligence claim. According to the court’s written opinion, the resident was admitted to the nursing home in 2013 with various cognitive and physical ailments, including Parkinson’s disease, heart disease, dementia, psychosis, functional quadriplegia, and chronic kidney disease. When admitted, her son, as her representative, signed an “Admissions Agreement.” This agreement included an arbitration clause for “any dispute as to medical malpractice,” which was further defined as disagreement over whether medical services rendered to the resident was necessary, unauthorized, or improperly, negligently, or incompetently rendered.

In 2016, a little over three years after living in the home, a nursing assistant was pushing the resident back to her room after breakfast. While on their way, the resident’s foot got caught in a loose cord, which catapulted her headfirst onto the floor, breaking her neck. Tragically, the resident died five days later due to her injuries. In the aftermath, her estate sued the nursing home for wrongful death and negligence, and the nursing home moved to compel arbitration under the Admissions Agreement’s arbitration provision. However, the court found that the nursing home could not compel arbitration under their agreement, because the agreement only covered disagreements over medical services rendered. Although the incident led to medical services and medical evidence was produced against the defendant nursing home, the dispute was not itself over medical malpractice, and thus the nursing home could not force the plaintiffs to arbitrate.

Each year, more states enact laws that allow for cameras in nursing homes and assisted living homes, which provide much-needed protection for residents. The laws allow residents and their families to place cameras in the residents’ rooms. In 2003, Maryland enacted a law requiring the Maryland Department of Health and Mental Hygiene to develop guidelines for electronic monitoring. Under those guidelines, the state currently allows electronic monitoring in Maryland nursing homes with resident consent—but only if the nursing home allows it.

Meanwhile, other states continue to enact electronic monitoring laws, many that provide much greater protections to residents. According to a local news source, Minnesota recently passed an electronic monitoring law to protected elderly adults. The law, entitled the Elder Care and Vulnerable Adult Protection Act of 2019, took effect on January 1, 2020. A state ombudsman said that electronic monitoring is a right included in the state’s Home Care Bill of Rights.

The law was advocated for by families whose loved ones were abused or mistreated. Under that state’s law, there is a consent form required in order to obtain the monitoring device. Providers such as nursing homes must tell residents about the law and have the forms available to use. Consent is required from all people living in the same room. Before the law was enacted, according to the ombudsman, residents and their families were installing cameras, but there was nothing to stop others from removing the cameras. Under the new law, residents there can install cameras without letting the providers know.

The Centers for Medicare and Medicaid Services (CMS), an agency that oversees Medicare and Medicaid and works to identify and eliminate nursing home fraud and abuse, recently released a memorandum detailing their 2020 priorities. These updated priorities are important for Maryland families to understand, as they affect the rights of nursing home residents as well as a resident’s ability to recover in case of nursing home neglect or abuse.

One of the major updates included in the 2020 memorandum concerns arbitration agreements. Arbitration agreements, if signed, require an injured nursing home resident to settle disputes with the home through a confidential arbitration process, rather than in court. This process operates privately, and while it is much faster than traditional litigation, plaintiffs lose any right to appeal and evidence shows plaintiffs are more likely to lose in arbitration. CMS’s recent memorandum states that the agency will allow nursing homes to use binding arbitration agreements with their residents, but that such agreements cannot be required as a condition of receiving care. For instance, if a resident refuses to sign the agreement, nursing homes cannot refuse to care for them solely on that basis. Additionally, CMS indicated in the memorandum that nursing homes must also explain to residents or their representatives that they can still receive care without signing.

CMS also stated that it plans to make changes to how instances of abuse and neglect are reported and investigated. For instance, new guidelines released later this year may include changes in the time frame required for investigations, the collection of certain evidence and investigative report, and general new policies and procedures to be implemented in nursing homes to catch instances of abuse.

Expert witnesses can be extremely helpful in Maryland nursing home abuse cases. They can help explain to the judge or the jury the extent of the injuries, or how the incident occurred. Typically, expert witnesses are very helpful for plaintiffs and may help them win their cases against negligent nursing homes. However, there are some instances where expert testimony is required—not just helpful—and plaintiffs might even lose if they do not have it.

Recently, a state appellate court issued a decision discussing when expert witnesses are needed to prove a claim of negligence and when they are not. According to the court’s written opinion, the complaint was brought as a wrongful death suit against the nursing home, in part for negligent staffing. The victim, a 71-year-old resident in the home, had been living in the facility for eleven years. One night, a licensed practical nurse (LPN) entered his room during her night shift, saw vomit on the resident’s clothing, and noticed that his stomach was distended. Concerned, the LPN reported what she had seen to other staff members but took no further action. Importantly, there was no Registered Nurse (RN) on staff during the night shift. It wasn’t until around 12 hours later, the next morning, when an RN actually examined the resident and had him taken to the emergency room. The resident was treated in the emergency room and then the intensive care unit, but unfortunately died that night from bowel complications.

The resident’s family and estate brought a wrongful death suit against the nursing home, claiming that the facility was negligent by not staffing the night shift with someone who could have properly assessed the victim’s condition. According to the plaintiffs, had there been an RN or someone else on staff, they likely would have realized the severity of the resident’s condition and transferred him to the hospital earlier, which may have saved his life. The defendants attempted to dismiss the claim against them, arguing that the staffing decision required professional nursing judgment, making it professional negligence, rather than ordinary negligence. A key difference between the two is that professional negligence requires expert testimony, something the plaintiffs did not have.

When a Maryland family chooses a nursing home for their loved one to stay in during their last years of life, they want nothing more than the home to keep their loved one safe and well taken care of. Unfortunately, however, far too many Maryland families will experience the devastating impacts of nursing home abuse and neglect each year, which can lead to serious injuries or even premature death. While Maryland law allows the injured victims or their families to file a negligence suit against the nursing home for injuries and/or wrongful death, potential plaintiffs should keep in mind one common barrier to recovery: statutes of limitations. Statutes of limitations dictate how long a Maryland family has after an incident occurs to file suit against the nursing home. If the statute of limitations runs out, then the family is barred from filing suit and recovering even a penny from the nursing home.

Statute of limitations laws are strict and can bar a plaintiff who files even a few days too late. For example, take a recent state appellate case. According to the court’s written opinion, the deceased was hospitalized in February of 2012 due to severe abdominal pain. The institution caring for him ran a number of diagnostic tests and examinations but failed to administer a CT scan for a full week, even after a physician ordered one. When a CT scan was finally performed, it revealed the perforation of the victim’s colon and found that his bowel was failing. The victim died a few days later.

The victim’s wife, who was the plaintiff in this case, filed a wrongful death action in May of 2016, alleging negligence for not administering a CT scan sooner, which could have potentially saved her husband’s life. However, her suit was found to be barred by the statute of limitations. The court found that the statute of limitations for the plaintiff’s claim expired on May 27, 2016. The plaintiff filed on May 31, 2016, only four days later, but the court had no choice but to dismiss the suit. Tragically, the court in the opinion wrote that the evidence presented in the case did point towards negligence, meaning that the plaintiff may have been able to recover significant monetary damages against the hospital had she filed her suit just four days earlier.

Abuse and neglect are serious problems in Maryland nursing homes, and incidents can lead to physical and psychological injuries, and even premature death. Maryland law allows victims or their families to file lawsuits against negligent nursing homes when incidents occur, but many residents may be waiving that right without knowing it.

The use of mandatory arbitration agreements in nursing home contracts forces an injured resident to settle disputes with the nursing home through a private and confidential arbitration process, rather than in court. According to a recent news report, last month, two Congressional representatives introduced a bill that would ban nursing homes from requiring or asking residents to enter into mandatory arbitration agreements when moving into a home.

The use of arbitration by nursing homes has been a hotly debated topic. Advocates say that the process is speedier and less costly for abuse and neglect victims, while still allowing them a chance to receive the same financial compensation and other remedies available in court. Critics, on the other hand, claim that mandatory arbitration forces victims to give up their right to a day in court, allows negligent nursing homes to get away with abuse without hurting their reputation, and is unfairly biased against victims, especially since the nursing homes are repeat players who can form relationships with arbitrators.

Nursing homes must meet certain standards in caring for their residents. The standards that must be met vary, depending on the jurisdiction and the local laws and regulations. Generally, the standards require that a nursing home must provide its residents with a safe environment and that it must exercise reasonable care in caring for its residents. In a Maryland nursing home abuse or neglect case, a plaintiff must show that the nursing home failed to meet its duty in properly caring for the resident under the circumstances. Courts may use different standards, such as national standards set forth for nursing home care and a nursing home’s internal policies.

Many nursing home cases involve neglect rather than intentional abuse. Examples of potential neglect include unsanitary living conditions and poor personal hygiene, which can cause sicknesses, especially to residents who are often already sick and elderly.

Almost 35,000 people die each year from drug-resistant infections, according to recent data from public health officials. The latest projection of deaths in the country is double the previous estimates, revealing the prevalence of drug-resistant infections, as one recent news source reported.

Nursing home abuse, while unfortunately common, is often difficult to catch or prove. Often, the victims are seriously disabled and vulnerable, and they may be unable to tell someone about the incident or even remember the incident at all. If they do manage to tell someone, their credibility may be undermined by the nursing home itself, denying that the incident happened and blaming the victim’s disability for causing them to lie or imagine things. Because of this, more and more nursing home residents and their families are installing cameras in nursing homes to monitor interactions between staff and the resident and look for instances of abuse.

Sometimes, these cameras can be the sole reason why a negligent nursing home is held responsible for the abuse that occurs in their facility. For example, a recent Minnesota nursing home recently discovered a video of a caregiver physically and verbally abusing a severely disabled resident. According to a local news report covering the incident, the staff member taunted the resident with derogatory and humiliating language, calling them vulgar names and asking them “do you think you have a hole in your brain?” The video also shows the caregiver tapping the resident’s face “in a slapping-type motion.” Without the video, the incident may never have been uncovered; the resident is partially paralyzed and has lost the ability to understand or express speech, and it is highly unlikely that they ever would have reported it themselves.

Fortunately for Maryland residents, the state’s laws allow a resident, or their family with the resident’s permission, to place hidden video cameras in the resident’s room. These video cameras can increase transparency in nursing homes and make it easier to catch incidents of abuse when they happen. They can also make it easier to pursue a resulting personal injury claim against the nursing home. Many personal injury cases against nursing homes likely would not have been won without video evidence, since the nursing home generally denies that any abuse occurred, and it can be difficult without hard evidence for plaintiffs to prove otherwise. Maryland is one of only a handful of states that allow video camera installation in nursing homes, and the nursing home industry actively fights against similar laws in other states.

More Maryland families are searching for nursing homes for their loved ones. Many utilize the Nursing Home Compare website run by the Centers for Medicare and Medicaid Services (CMS), which offers information on certified nursing homes across the country. The website allows families to compare how nursing homes rank for health inspections, staffing, resident care, and more. In October, CMS announced an addition to the website to better inform consumers about nursing home abuse:  adding a new abuse warning icon – a red circle with an open palm – next to the names of nursing homes with a history of abuse or neglect.

The plan sparked immediate backlash and controversy, with advocates from the long-term care industry speaking out against the new icon. According to a new article covering the controversy, leaders from AMDA (the Society for Post-Acute and Long-Term Care Medicine) have called the new icon “misguided,” arguing that it will actually be counterproductive to patients and will negatively affect the motivation of staff members in nursing homes. A spokesperson from the American Health Association even called the red hand “dumb,” arguing that it is overly punitive and may improperly lead consumers away from quality nursing homes.

The government and supporters of the icon stand by their belief that the icon is beneficial to consumers. The CMS administrator wrote in October that the icon puts “critical information at consumers’ fingertips, empowering them and incentivizing nursing homes to compete on cost and quality.” Opponents, in response, argue that the icon could make consumers not even consider certain nursing homes, even if the abuse was long ago and resolved appropriately. Additionally, nursing homes without icons may be discouraged from reporting new incidents of abuse, out of fear of earning an icon on the website. Instead of an icon, opponents argue that the best way to end nursing home abuse is to encourage reporting of incidents.

Although one hopes that Maryland nursing home abuse will never happen, state law understands that, when it inevitably does, the individuals affected have a right to bring a civil suit against the nursing home. However, many nursing homes may ask residents and their families to sign away that right by signing an arbitration agreement. Arbitration agreements, which vary depending on the nursing home, generally bind both the resident and the home to settling any disputes that arise through an arbitrator, rather than in a judicial forum.

With a valid arbitration agreement, when an individual is injured or suffers a premature death as the result of the nursing home’s negligence, the victim or their family must pursue their claim confidentially, through an arbitrator chosen by the facility. Arbitration, although it is quicker and potentially less burdensome than bringing a suit in court, may still be disadvantageous for plaintiffs. For example, nursing homes typically have the power to choose the arbitrator, who acts as the judge, and they may choose one they have worked with before. Additionally, there is no jury, and no appellate process.

Generally, signed arbitration agreements are valid and enforceable, and a nursing home can compel arbitration if a resident or their family ever file a suit against them in court. However, like all contracts, nursing home residents can challenge a contract that they signed without knowing what they were signing, claiming they never agreed to waive their right to sue. Recently, a state appellate court considered a case where this happened. According to the court’s written opinion, the plaintiff required 24-hour nursing care due to multiple disabilities. When he was admitted to the defendant nursing home, they had him sign 12 documents, including an arbitration agreement, but the facility’s employees never explained the arbitration agreement to him or gave him a copy to review.

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