Maryland Nursing Home Lawyer Blog

October 5, 2018

Medical Malpractice Claims in Maryland Nursing Homes

Because nursing homes generally offer medical care to residents, Maryland medical malpractice claims may arise in the nursing home setting. In a recent medical malpractice case, a family brought a medical malpractice claim after their elderly mother fell. The eighty-nine-year-old patient fell after she got out of her hospital bed, suffering a serious head injury. She had surgery but never fully recovered from the head injury. After her death a few years later, her daughters filed a medical negligence claim against the hospital. The case went to trial, and the court found in favor of the hospital, but the daughters appealed.

On appeal, the plaintiffs argued that the trial court was wrong in finding that the hospital’s failures to comply with the standard of care did not cause the patient’s injuries. At trial, the plaintiffs’ expert, a doctor at Johns Hopkins Health System, testified that the hospital breached the standard of care concerning fall-risk assessments by failing to use a bed alarm and by failing to make hourly comfort rounds. In contrast, the hospital’s expert testified that the hospital met the standard of care and that such measures would not have prevented the patient’s fall.

The appeals court agreed with the hospital, finding that the plaintiffs failed to prove the element of causation. The court explained that the plaintiffs failed to show that the lack of a bed alarm proximately caused the patient’s fall. The plaintiffs were required to show that there was a causal connection between the patient’s injuries and the hospital’s actions. The two experts presented conflicting testimony regarding the effectiveness of bed alarms, and the court noted that the plaintiffs’ expert testified that she did not know whether a bed alarm would have made any difference in this case. Therefore, the court found that the evidence was “too tenuous” to support a finding that the use of a bed alarm or of increased comfort round would have prevented the fall.

September 28, 2018

According to New Study Inadequate Staffing Levels Plague Nursing Homes in Maryland and Nationwide

by Lebowitz & Mzhen

As the average age of the United States population continues to increase, more families have to rely on the services of nursing homes to care for family members. Unfortunately, many nursing home facilities are not properly equipped to take care of aging individuals with serious limitations and as a result many residents suffer from abuse and neglect. A new study confirms that many families have good reason to worry, as chronic understaffing is a widespread issue among nursing homes. If you believe your loved one has been harmed by nursing home negligence, contact a skilled Maryland nursing home abuse attorney to discuss your options.

In a recent study by Kaiser Health News and the New York Times, 1,400 nursing facilities across the United States are understaffed. This means that they have do not have an adequate number of registered nurses, as required by the Centers for Medicare and Medicaid Services. The records showed lower staffing levels than the nursing homes had been reporting.

The researchers looked at the payroll records of nursing homes and found that many did not report having a registered nursing on duty for at least 8 hours on many days, which is required under Medicare. In addition, the records of nursing assistants, who provide complemental services to the work of registered nurses, showed their time working was inconsistent. Medicare has only collected and published payroll data on staffing at nursing homes in recent years, as opposed to relying on the homes’ own reports as it had done previously.

September 21, 2018

Plaintiff Claims Nursing Home Arbitration Agreement Was Unconscionable

by Lebowitz & Mzhen

These days, many Maryland nursing home admission agreements often include arbitration contracts or clauses, which require certain claims against the nursing facility to be resolved through arbitration. However, under some circumstances, such agreements may not be enforceable. In one recent case, a plaintiff claimed that the arbitration agreement was not enforceable because the agreement was unconscionable.

In that case, a nursing home resident died in the facility and her husband filed a wrongful death claim against the nursing facility. The husband alleged that the nursing home’s staff negligently allowed his wife to fall multiple times, which ultimately led to her death. The facility filed a motion to compel arbitration based on an arbitration agreement that was signed between the resident and the facility. The husband claimed that the arbitration agreement was unconscionable and could not be enforced.

In that case, there was a signed arbitration agreement, which was separate from the admission agreement. The heading on the cover page read, “EXPLANATION OF BINDING ARBITRATION AGREEMENT,” and stated, “PLEASE READ CAREFULLY.” The cover page of the arbitration agreement stated that the agreement was “voluntary and not a condition for admission” and that the resident could consult with an attorney before signing the agreement. The agreement also stated that the resident could withdraw her consent within thirty days of signing. The resident could do this by writing “CANCELLED” on the agreement and mailing it to the facility. The resident and her husband signed the arbitration agreement and did not withdraw consent within 30 days.

September 14, 2018

Jury Awards Over $4 Million in Punitive Damages in Nursing Home Case

by Lebowitz & Mzhen

Proving damages is an essential part of any Maryland nursing home claim. In a recent case before a federal appeals court, the court upheld a punitive damages award of over $4 million in a case where the compensatory damages award totaled just $650,000.

The Facts of the Case

In that case, the plaintiffs brought three wrongful death claims against a nursing home after three residents died at the home. The nursing home had a special “vent unit” for ventilator-dependent patients. The plaintiffs claimed that the three residents, who were ventilator-dependent patients, died because of the nursing home’s inadequate staffing and inadequate supplies.

One resident received an anoxic brain injury during the night and was found with his ventilator and all his alarms turned off. Another patient was found dead with her breathing apparatus pulled from her neck and without an alarm or oxygen monitor. Both deaths were found to be caused by understaffing. The third resident died because staff was not able to replace her tracheostomy tube in a timely manner due to a lack of supplies. The case went to trial and the jury awarded the plaintiffs $650,000 total in compensatory damages, and also awarded each plaintiff $1,523,939.16 in punitive damages.

September 7, 2018

Allegations of Abuse in Maryland Nursing Homes

by Lebowitz & Mzhen

For family members who diligently researched the available options and carefully helped place a loved one in a Maryland nursing home, it is incredibly upsetting to hear a loved one disclose that they are being neglected or abused by nursing home staff members. However, this is exactly what many family members experience when their loved ones report back to them about their life in the nursing home.

It is estimated that approximately 500,000 elderly nursing home residents are the victim of abuse and serious neglect each year. However, it is also understood that this figure likely is much lower than it should be due to rampant underreporting by residents. In addition, when residents decide to reach out to nursing home management to disclose abuse, the allegations are too often swept under the rug. In many cases, it is only when family members get involved that allegations of abuse get taken seriously.

Once a nursing home resident discloses abuse, a Maryland nursing home abuse lawsuit can be filed against the responsible parties. If successful, the resident will be able to obtain compensation for their injuries. Importantly, this includes compensation for emotional injuries, as well as physical injuries.

August 31, 2018

Study Reveals Dangers of Unlicensed Care Facilities

by Lebowitz & Mzhen

Nursing home residents in Maryland and throughout the country have the right to live in a safe environment, free from abuse and neglect. Claims against nursing homes can range from physical mistreatment and sexual abuse, to neglect, financial exploitation, and psychological abuse. Cases of Maryland nursing home abuse or neglect may not be obvious, as a resident may have difficulty communicating and may not even be aware of the neglect or abuse.

It is important for families to remain vigilant to identify cases of abuse and neglect, by looking out for warning signs, including poor hygiene and unexplained injuries. Although licensed care facilities are required to follow certain laws and regulations under federal and state law, some individuals are being under-cared for in unregulated, unlicensed homes, increasing the risk of abuse and neglect to those individuals, as one study recently found.

Abusive Unlicensed Care Homes Pose Serious Risks

A year-long study raised concerns about serious risks at unlicensed care homes in the United States, finding that “egregious crimes” are being committed against residents, according to one news source. RTI International, an independent, non-profit research firm, conducted the study for the Office of Disability, Aging, and Long-Term Care Policy and the Office of the Assistant Secretary for Planning and Evaluation of the U.S. Department of Health and Human Services.

August 20, 2018

Court Allows Case to Proceed Due to Potentially Invalid Nursing Home Arbitration Agreement

by Lebowitz & Mzhen

These days, nursing homes in Maryland and throughout the country often require nursing home residents to sign arbitration agreements upon admission. In a recent case before a state appellate court, the court allowed a case against a nursing home to proceed after the family disputed the validity of the arbitration agreement.

The Facts

The plaintiff sued a nursing home on behalf of her deceased mother after her mother died at the nursing home. The nursing home filed a motion to compel arbitration based on an arbitration agreement that was allegedly signed by the daughter. However, the daughter argued that she did not knowingly sign a mandatory arbitration form on her mother’s behalf when her mother was admitted to the nursing home in 2003.

The 75-year-old mother was admitted to the nursing home on two occasions earlier that year. The first time, the daughter was asked to sign several documents when her mother was admitted, including an arbitration agreement. The daughter refused to sign the arbitration agreement, but the mother was admitted anyways. In court, the nursing home presented another arbitration agreement dated later that month with the daughter’s signature. The daughter claimed that the signature was not authentic and that even if it was, it was obtained by misrepresentation.

August 14, 2018

Court Holds Verbal Consent to Sign Was Sufficient to Enforce Nursing Home Arbitration Agreement

by Lebowitz & Mzhen

If a resident of a Maryland nursing home has signed an arbitration agreement, they will be prevented from filing a case against the nursing home in court and must instead pursue their claim through the arbitration process. Thus, one of the earliest and most important considerations in a Maryland nursing home abuse or neglect case is whether there is a valid and enforceable arbitration agreement. Legal News Gavel

Most nursing homes present residents with an arbitration agreement. Often, these agreements are buried deep in dense paragraphs, and they may not be fully understood by residents. Importantly, the fact that an arbitration agreement exists is not necessarily determinative of whether a resident will be forced to arbitrate their claim; courts will review arbitration clauses as well as the manner in which they were entered into before determining whether the agreement can be enforced.

One issue that frequently comes up in nursing home negligence and abuse cases in which an arbitration clause is present is whether the party that signed the contract had authority to do so. In a recent case decided by a federal appellate court, the court held that verbal consent given by a resident – rather than the typical document granting power of attorney – was acceptable to form a binding contract.

August 7, 2018

Prosecutors Ask Judge to Dismiss Case Against Neglectful Nurses

by Lebowitz & Mzhen

Abuse and neglect are serious problems in Maryland nursing homes, and in nursing homes across the country. Earlier this month, prosecutors who initially filed criminal charges against two nurses based on the allegedly negligent care they provided to residents asked the judge to dismiss the case. According to a local news report, despite the nurses’ claims that they had been taking care of a resident, video evidence showed that they did not step foot in her room for 17 hours. The video also showed that the nurses repeatedly left the elderly woman naked in her bed with the door wide open. Legal News Gavel

Evidently, after the family discovered the nursing home neglect, they reported it to the authorities, and charges were initially filed. However, prosecutors recently asked the judge to dismiss the case in favor of allowing the state board of nursing to handle any disciplinary sanctions. The board would have the power to revoke the nurses’ licenses and place them on the registry of known abusers.

Although the prosecutors did not come right out and say it, what seems to be motivating their decision is the fact that in Iowa, where the abuse occurred, there is no statute allowing nursing home residents to install cameras to monitor staff. Thus, the prosecutors may be fearful that if they brought the case, the video would be inadmissible at trial, and this may create a bad precedent moving forward.

July 27, 2018

How Do Courts Handle Unenforceable Clauses in an Arbitration Agreement?

by Lebowitz & Mzhen

The determination of whether a nursing home abuse lawsuit is fought in court or through binding arbitration is often the very first fight in a long battle that many Maryland nursing home residents and their families face when trying to hold an abusive or neglectful nursing home accountable for their actions. Historically, nursing homes fare better when their claims are heard through arbitration. Thus, Maryland nursing homes do everything they can to get cases against them in front of an arbitrator.

Over the years, more and more nursing homes began to include arbitration agreements in their pre-admission paperwork. Often, these clauses are written in small print and included in the middle of large blocks of text. The idea being that the signing party will not take the time to thoroughly read through the entire document.

For a long time, courts were upholding these agreements based on the fact that they were signed. However, over the recent years, courts have been willing to intervene when arbitration agreements are either substantively unfair or were presented to the signing party in an unfair manner. However, arbitration contracts often contain a number of terms. And in some cases, a court will only take issue with a few of the terms in the overall agreement. In these cases, there is significant litigation over whether the whole agreement is invalid or whether the offending clause can be “severed” from the rest of the agreement. A recent case discussed this very issue.