Over the past few months, there have been a number of nursing home abuse and neglect cases involving nursing home employees or management attempting to cover up the allegations made against them. Unfortunately, in some cases, this has turned out to be a successful tactic to evade liability, albeit through illegal and immoral means.

Folders of PaperAs a general rule, parties must preserve all of the evidence, including physical documents, emails, and even text messages, that may be relevant to a case as soon as that party has notice that a case was filed. This is because the opposing party is entitled to review all of the relevant documents through the process of pre-trial discovery.

Pre-Trial Discovery in Nursing Home Cases

In nursing home abuse and neglect cases in particular, pre-trial discovery is an integral process for the plaintiff. This is because there is likely little way for the plaintiff to have any knowledge of what goes on inside the walls of the nursing home, especially when the plaintiff’s loved one suffers from dementia or some other illness that affects their memory or ability to communicate.

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Last month, an appellate court in Georgia issued a written opinion in a case brought against a hospital involving allegations that the hospital was negligent in allowing the plaintiff to develop a stage IV bed sore. Ultimately, however, the court rejected the plaintiff’s case because the required expert affidavit that was filed along with the case failed to comply with state-law requirements.

Hospital RoomThe Facts of the Case

The plaintiff was admitted to the defendant hospital while he was unconscious. While he was being treated by the hospital, he developed a stage IV pressure ulcer near the base of his back. The plaintiff filed a personal injury lawsuit against the hospital, claiming that the hospital staff was negligent in failing to assess and treat the pressure ulcer and to properly care for him while he was unconscious.

As is the case in Maryland, under Georgia state law, medical malpractice plaintiffs must submit an affidavit in support of their claim. Essentially, the affidavit must come from a medical profession in a relevant field, and it must “set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

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Earlier this month, an appellate court in Florida issued an interesting opinion in a case involving allegations that a nursing home was negligent in the care of a resident. The case presented the court with the opportunity to discuss an arbitration clause contained in a contract that also contained a legally invalid clause regarding a related issue. Ultimately, the court concluded that the invalid clause could properly be severed from the rest of the contract. Thus, the arbitration agreement was found to be valid.

ContractThe Facts of the Case

The plaintiff was the loved one of a woman who was injured while in the care of the defendant nursing home. Prior to the resident’s admission, she signed a pre-admission contract containing a clause agreeing to submit any claims that arose between herself and the nursing home to binding arbitration. There was also a clause stating that each party would be responsible for their own attorney’s fees, regardless of the claim’s outcome. Finally, the contract contained a “severability” clause.

Notwithstanding the arbitration agreement, the plaintiff filed a personal injury lawsuit against the nursing home. In a pre-trial motion for summary judgment, the nursing home sought the dismissal of the case, based on the signed arbitration agreement. The court determined that the attorney’s fees provision violated public policy, rendering the contract (and the arbitration clause contained therein) invalid. The nursing home appealed.

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Earlier this month, the United States Supreme Court issued a written opinion in a case brought by the surviving family members of two nursing home residents who died while in the care of the defendant nursing home. The case required the court to determine whether a state law was valid if it permitted a loved one of a nursing home resident to enter into binding arbitration only when they possess a power of attorney document that specifically mentions “access to the courts” as a conferred right. Ultimately, the court determined that the state law violated the Federal Arbitration Act.

Signing a ContractThe Facts of the Case

The plaintiffs were the surviving family members of two loved ones who lived in the defendant nursing home prior to their deaths. Prior to the residents’ admission to the facility, the plaintiffs completed the necessary pre-admission paperwork for each of the residents. One clause in the document stated that “[a]ny and all claims or controversies arising out of or in any way relating to . . . the Resident’s stay at the Facility” would be resolved through binding arbitration. At the time the paperwork was completed, the plaintiffs had valid documents indicating that they possessed powers of attorney for their loved ones that permitted they “dispose of all matters” related to their loved ones.

In the next year, both residents died while in the care of the nursing home. The nursing home asked the court to dismiss the case and require the plaintiffs to submit their cases through the arbitration process, as indicated in the pre-admission contracts. The state court rejected the nursing home’s argument, finding that a person’s access to the court system is a “sacred” right, and it can only be waived by an explicit statement in the power of attorney document.

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A claim of negligent hiring is based on the idea that an employer has a duty to protect others from a risk of harm posed by employees of which the employer knows or should know. If an employer fails to exercise reasonable care to ensure that other employees and customers are not at risk of harm from its employees, the employer may be liable for negligent hiring. For example, an employer might be liable for hiring an employee with a violent criminal record and providing the employee with a firearm. Liability may also be appropriate when an employer fails to check an employee’s past employer references, which would have revealed that an employee was unfit for the position.

iPhoneIn Maryland, a negligent hiring claim requires the plaintiff to show:

  • The employer owed a duty to the injured person to use reasonable care in selecting its employees;
  • The employer’s conduct in hiring or retaining the employee was not reasonably prudent under the circumstances;
  • The employer’s failure to exercise reasonable care caused injuries to the plaintiff; and
  • The plaintiff suffered damages.

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Nursing homes do not enjoy a good reputation when it comes to patient care, and for good reason. Over the past few years, it seems that there has not been a week that goes by without an incident of nursing home abuse or neglect. With the increase in reports of nursing home abuse and neglect over the past several decades, as well as the corresponding advancement of technology, the question of whether hidden cameras in nursing home facilities should be allowed has recently garnered a significant amount of attention.

Bear with CameraCameras in nursing homes are a good way to monitor the level of care that a nursing home provides to its residents. However, not surprisingly, when a family places a hidden camera in a nursing home, certain legal issues may arise. Importantly, there is no federal legislation giving families or residents the right to install hidden cameras in a nursing home facility. However, some states, such as Oklahoma, Texas, and New Mexico, have passed state legislation giving families the right to place cameras in at least some circumstances.

In most cases, a nursing home will include a clause in the pre-admission contract restricting the resident’s right to use video or audio surveillance. And in most cases, since the resident’s room is technically the property of the nursing home facility, these clauses are upheld. However, if the family of a nursing home resident suspects that their loved one is a victim of abuse or neglect, legal action may be taken through a Maryland nursing home neglect or abuse lawsuit.

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Over the past decade, instances of resident-on-resident abuse in nursing homes have greatly increased. One of the most common forms of unwelcome resident-on-resident contact is sexual abuse. When a resident suffers sexual abuse while at a nursing home facility, various legal issues may arise.

Comfort DollDetermining Who Is Responsible in Cases of Resident-on-Resident Sexual Abuse

There are two very important issues that must be determined early in a personal injury lawsuit alleging resident-on-resident sexual abuse. The first is whether the abuse was permitted to occur based on a lack of supervision at the nursing home. If so, the nursing home may be responsible under the legal theory of negligence. Generally speaking, nursing homes have a duty to care for and protect residents from certain harms, sexual abuse included. When a nursing home fails to provide a resident with adequate protection, the nursing home may be liable as a result.

The second important issue that must be resolved is whether a valid arbitration agreement has been signed by the resident or a member of the resident’s family. In many cases, nursing homes will claim that any case arising out of the care they provided to a resident must be settled through arbitration. Most often, arbitration clauses – which waive a party’s right to use the court system and require the case to be submitted to an arbitration panel – are in the nursing home pre-admission contract.

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When most people hear the term “nursing home abuse,” images of a callous, bitter nursing home employee come to mind. However, over the past several years, a new kind of nursing home abuse has been on the rise:  resident-on-resident abuse.

Wheelchair

Most nursing homes care for a large number of patients, each with different medical needs. While some residents suffer from dementia or severe physical limitations and require constant supervision and care, other residents are in better health and are able to maintain some level of independence. This creates a situation in which one resident may bully, harm, or take advantage of another resident. Indeed, recent studies show that 90% of those who commit nursing home abuse are known to the resident.

A Nursing Home’s Duty to Protect Residents

When a nursing home takes in a patient, the home assumes a duty to that resident as well as the resident’s loved ones. Of course, the nursing home is responsible to provide a certain level of care to the resident. However, a nursing home’s duty to its patients does not end there. Nursing homes must also act to affirmatively protect residents in certain situations.

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Claims against nursing homes can arise in a variety of circumstances, including abuse, neglect, and failures to properly treat patients in their care. As a result, many of the claims against nursing homes and other long-term care facilities allege the facility was negligent in some way. As in any negligence claim, in a nursing home claim alleging negligence, a plaintiff must establish that the defendant owed a duty to the plaintiff, the defendant breached that duty, the breach caused the plaintiff’s injury, and the plaintiff sustained damages.

Hospital BedIn nursing home claims, after a plaintiff proves that a nursing home owed a duty to the resident, the next issue is whether the defendant’s conduct fell below the standard of care. This is the standard that a defendant is expected to meet under the circumstances present in the particular situation. In some cases, a nursing home resident may die at a nursing home, but the home may not be at fault. Thus, in order to establish liability, a plaintiff has to show that the facility did not properly care for the resident, and this conduct led to the resident’s injuries. A recent case shows the type of evidence necessary to succeed in a nursing home negligence lawsuit.

Jury Awards Family $450,000 After Resident Dies from Infection

A jury recently found a rehabilitation center was negligent in its care of a blind, diabetic resident,
and it awarded the man’s family $450,000 in damages. According to one news source, the man, a 79-year-old retired tractor mechanic, died in November 2014, just a month after he was admitted to the center. The evidence presented at trial showed that the man was on dialysis and developed an infection in his big toe that turned gangrenous and that led to his right leg being amputated and ultimately to his death.

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Nurses employed by private nursing homes often have very difficult jobs. Private nursing homes are for-profit businesses that are primarily motivated by the bottom line. This means that the lower that staffing costs are, the more money that nursing home management or investors can take home at the end of the day. This pressure can incentivize nursing home management to keep as few nurses on the clock as possible.

Wrinkled HandsFor a nurse who is just trying to do her job, fewer nurses on the floor means more work. Often, nurses will have to take on additional patients due to “staffing shortages.” Since nurses are human, the more stress placed upon them, the more likely that they are to make a mistake.

Of course, being busy and overstressed is not an excuse to make a mistake that can cost someone their life, but it does tend to explain why so many serious instances of neglect and serious medical errors occur in nursing home facilities across the country.

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