Maryland Nursing Home Lawyer Blog

Arbitration Agreements May Hinder Maryland Plaintiff’s Ability to Recover Against Negligent Nursing Homes

December 6, 2019 | Lebowitz & Mzhen

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.

Government Accountability Office Report Highlights Risk of Maryland Nursing Home Abuse

November 26, 2019 | Lebowitz & Mzhen

Across the country, approximately 1.4 million elderly or disabled individuals receive care in over 15,000 nursing homes. While many of these nursing homes take great care of their residents, a recent study from the U.S. Government and Accountability Office (GAO) finds that, unfortunately, nursing home abuse still occurs with some regularity. Because residents often have physical or mental disabilities and limitations, they are some of the most vulnerable to abuse. Maryland residents should be aware of potential issues of abuse when choosing a nursing home for themselves or a loved one.

The GAO’s report found that citations of nursing home abuse more than doubled between 2013 to 2017, with a particularly significant increase in severe cases of abuse. Importantly, the report also found gaps in the oversight of nursing homes. The Centers for Medicare & Medicaid oversee a program with state agencies to monitor nursing home safety, but their ability to do so may be limited for several reasons. First, state agencies who survey nursing home abuse typically do not note abuse and perpetrator time, meaning the Centers for Medicare & Medicaid may not have a complete picture of who is committing the abuse, or what type is most common. Second, when nursing homes report incidents, they typically lack vital information, which often delays state agencies’ investigations. And third, the GAO found gaps in the Centers for Medicare & Medicaid’s processes for referring incidents of nursing home abuse to law enforcement, which can slow down investigations and make it harder to end abuse in the homes overall. The GAO, finding these problems, also made recommendations to the Centers for Medicare and Medicaid on how they can fix them and improve the safety of nursing homes and the processes for dealing with abuse.

Cases of abuse in Maryland nursing homes, which can include medical neglect or physical, verbal, or sexual assault, can cause intense emotional distress and trauma for the victim and their families, not to mention medical bills for past and possibly continuing care. While the GAO’s report may hopefully lead to increased safety in Maryland nursing homes, there will, unfortunately, still be tragic instances of abuse. If tragedy does strike in a Maryland nursing home, state law allows the victim, or their family, to sue the home for negligence. The money won in a suit, while it can never undo the damage done, may help the recovery and healing process.

Sexual Assault Is a Growing Concern in Maryland Nursing Homes

November 18, 2019 | Lebowitz & Mzhen

Sexual assault and abuse incidents are always tragedies but can be of increasing concern when the victims are particularly vulnerable, weak, or unable to communicate what is happening to them. Unfortunately, this is the case for many victims of sexual abuse in Maryland nursing homes and hospitals. Although nursing homes and hospitals are supposed to take care of their residents and keep them safe, staff in these facilities may take advantage of residents sexually. In fact, a 2017 report found that more than 1,000 nursing homes across the country had been cited for failing to prevent sex abuse at their facilities, or for mishandling the reports.

The problem can, of course, affect the elderly who are spending their final days in a nursing home and require continual care. But a recent news report details that sexual abuse can occur to patients of all ages, including those who are young but significantly disabled or weakened. According to the report, there have been instances of sexual abuse in hospitals and nursing homes across the nation, with victims ranging in age. One 61-year-old woman, unable to speak from a tube in her throat, eventually communicated to her daughters that she had been abused by an EKG technician. Another victim, 29 years old and severely disabled, was found to have been sexually abused by one of her nurses.

Anytime an individual is sexually abused, Maryland law allows them to bring a civil suit both against the perpetrator and against a larger responsible party. When the abuse happens in a nursing home or a hospital, the victim or their loved ones can bring a civil suit against the institution for failing to take adequate steps to protect against sexual abuse. These institutions have a duty to take reasonable steps to ensure their residents are protected, but many still fail to handle complaints in a timely manner or investigate allegations. In order to prevail in a civil suit against one of these institutions, a victim or their loved one must prove to the court that the defendant had a duty to protect the victim, that they either did something or failed to do something that breached that duty, that their breach directly caused the victim’s injuries, and that the victim suffered actual injuries. While this process seems straightforward, the intricacies of the law can at times be confusing to victims and their families, particularly if they are still dealing with the aftermath of abuse. Potential plaintiffs are advised to consult with attorneys with experience in this area of law, who can take the case off their hands so they can focus on healing.

Government Website Warns Families of Potential Abuse or Neglect in Maryland Nursing Homes

November 12, 2019 | Lebowitz & Mzhen

When it comes time to place a loved one into a Maryland nursing home, families should be aware of the danger of abuse and neglect in nursing homes across the state. Choosing a nursing home is an incredibly important decision, and, unfortunately, failure to research homes carefully can result in placing a loved one in a substandard institution.

To make this process easier on families, Medicare.com offers information on every Medicaid and Medicare certified nursing home in Maryland. Maryland nursing homes must comply with state and federal regulations, and the Centers for Medicare and Medicaid Services make sure that facilities are following these standards. On their Nursing Home Compare website, families searching for a safe institution for their loved one can search for nursing homes by state, zip code, or city. For each certified nursing home, the website offers detailed information, including ratings ranging from zero to five stars on how the nursing home does on health inspections, taking care of their residents, staffing, and more. This information can be crucial in deciding between two local nursing homes, for example.

Importantly, this website will also notify you if there has been a recent incident of abuse or neglect in the nursing home where the resident was either injured or could have been injured. Unfortunately, nursing home abuse is far too common, and residents placed in substandard institutions are at risk of being neglected, abused verbally, physically, or sexually, or harmed from inferior safety protocols. When incidents such as these come to the attention of the Centers for Medicare and Medicaid Services, however, the nursing homes involved are “flagged”. For example, according to a recent report, five nursing homes in San Antonio, Texas were flagged earlier this month for several instances of abuse and neglect, alerting potential customers to these problems. While it is tragic that these instances occur, it is important that families considering placing their loved one in a nursing home research institutions carefully so they are aware of the potential problems.

Social Media and Maryland Nursing Home Abuse

November 5, 2019 | Lebowitz & Mzhen

Recently, a national news publication reported on a disturbing assisted living center abuse case. The case highlights issues that many Maryland nursing home abuse victims and their families experience.

According to the report, police investigated an assisted living facility after they received a call from a person who stated that they saw an egregious video of two women with dementia fighting posted on social media. The video shows a staff member pushing one resident while another resident is lying on the floor. The investigation revealed that, although the altercation did not amount to a “fight club,” as initially reported, the events were alarming and deviated from appropriate standards that nursing homes are expected to conform to. The employees permitted the residents to fight with each other while an employee physically assaulted another resident. Police conceded that the investigation was challenging because the victims are experiencing the symptoms of dementia and, therefore, cannot adequately articulate the events. The employees were terminated and are facing serious criminal charges.

In situations such as this, nursing homes and their employees often face civil charges in addition to criminal charges by residents and their families. In Maryland, nursing home abuse lawsuits are often steeped in allegations of abuse, negligence, malpractice, and premises liability. Nursing home abuse cases are typically the most disconcerting type of claim. These cases involve an intentional act or reckless disregard for the health and safety of the resident. Some examples of nursing home abuse are when a caretaker physically or sexually assaults a resident.

Maryland Nursing Home Abuse Victims Often Disclose Abuse to Loved Ones First

October 28, 2019 | Lebowitz & Mzhen

When a family member places their loved one in a Maryland nursing home, they are doing so to protect and care for their family member. However, unfortunately, each year thousands of nursing home residents report abuse or neglect in their institutions. There may even be more incidents than we are aware of, because many victims are unable to report their injuries, or are not believed when they do report. Unfortunately, there has been an increase in the rate of Maryland nursing home abuse. This is due in part to the aging population and an increase in life expectancy across the country.

Nursing home abuse can cause severe physical and psychological injury to the victims and their families. For instance, an 86-year-old woman was recently severely injured while staying in a nursing home. According to a local news report covering the incident, it is unknown exactly what happened to the resident, who suffered severe injuries to her face, including a broken nose, double fractures in her face, and stitches. Her son claims that his mother was assaulted, although the nursing home insists that she fell and there was no abuse.

Tragically, this is not the first time that the victim was injured from alleged nursing home abuse. Reportedly, she has told her son multiple times that her aides in the nursing home have been rough with her and hit her, causing noticeable bruising. Her son is heartbroken, having had to place his mother in the facility after she broke her hip and become totally disabled. An investigation is in progress.

Maryland Nursing Home Residents at Risk of Foodborne Illnesses

October 22, 2019 | Lebowitz & Mzhen

As the population ages, and life expectancy continues to increase, nursing homes are becoming a part of more and more Americans’ lives. As a result, Maryland nursing homes are caring for more residents than ever. Family members who place their loved one in a nursing home want to ensure that they are safe and being taken care of, but sometimes finances or other concerns force families to place loved ones in subpar institutions. Unfortunately, loved ones can suffer from nursing home abuse that often goes unreported. A common yet overlooked form of this abuse is food safety violations, which occur frequently in Maryland nursing homes and can cause serious illness, or even death.

A recent investigative report found that there are thousands of food safety violations in nursing homes across the country each year. According to a news article discussing the report’s findings, cockroaches, flies, mold, and mouse droppings are just a few of the unsanitary conditions found in nursing homes over the last three years. In fact, unsafe food handling was the third most frequent violation in nursing homes in 2018. That same year, 33% of nursing homes were issued citations for not safely storing, preparing, and serving food. And many of these instances are not just one-time mistakes: since 2016, approximately 33% of all nursing homes were cited multiple times for the same food safety violations.

These safety violations, while concerning in any kitchen, are of utmost concern in nursing homes because people over 65 are especially susceptible to foodborne illnesses. Unlike restaurants where a patron can get up and leave, nursing home residents often have no choice but to stay and eat in their institution. The result can be deadly: the report also found that, between 1998 and 2017, there were 230 foodborne illness outbreaks in long-term care settings such as nursing homes, which resulted in at least 45 deaths, 532 hospitalizations, and 7,648 people getting ill.

Centers of Medicare & Medicaid Services Creates Alert to Warn of Nursing Home Abuse

October 14, 2019 | Lebowitz & Mzhen

Incidents of Maryland nursing home abuse can be challenging to quantify because many victims are unable to report their injuries. Additionally, loved ones are often placed in subpar institutions because their families did not have the means or ability to evaluate the facility adequately. These factors, in addition to many others, have caused a rising rate of nursing home abuse incidents in Maryland.

According to a recent news report, the Centers for Medicare & Medicaid Services (CMS) launched a consumer alert feature on its website designed to warn people of nursing home violations. The CMS operates a website called “Nursing Home Compare,” which provides consumers with information about Medicare and Medicaid certified nursing homes in the United States. The website enables individuals to see whether a nursing home meets the minimum federal standards regarding things such as staffing, health, and safety. However, the website does not readily provide a way for people to discover any instances or allegations of abuse against a nursing home. In fact, a recent Senate report publicized a government finding of increasing nursing home abuse cases by facilities that rated as poorly performing but did not receive additional scrutiny.

The new alert intends to offer consumers a new and easy way to identify nursing homes with citations and other safety violations quickly. The alert will go live in October, 2019 and will flag facilities that had negative inspection reports on abuse in the past year or behaviors that could have led to harm in the past two years.

Maryland Nursing Home Arbitration Contracts May Be Impacted by FAIR Act

October 7, 2019 | Lebowitz & Mzhen

Arbitration has been a hot-button issue during the current administration. When President Trump took office back in 2017, there were strict rules set in place by President Obama that prevented nursing homes who used pre-admission arbitration contracts from receiving federal funds. The effect of this rule was to all but eliminate pre-admission arbitration contracts in Maryland nursing homes, as many received these types of funds.

Earlier this year, however, the administration was successful in amending the old rules to allow for nursing homes to include binding arbitration clauses in their pre-admission paperwork. Under the new regulations, nursing homes could use arbitration clauses as long as 1.) it is clear that the resident knew what they were signing, 2.) the document does not discourage residents from reporting non-compliance, and 3.) the arbitrator named in the agreement is neutral and mutually convenient. Nursing homes also had to allow residents a 30-day rescission period in which they could change their minds. While there were some protections for Maryland nursing home residents, most industry experts believe that this was a significant step backward.

According to a recent news report, in September, the U.S. House of Representatives passed the Forced Arbitration Injustice Repeal (FAIR) Act (the “Act”) by a vote of 255 – 186. The premise for the Act, as stated by one congressman, is that arbitration clauses have “seeped into just about every nook and cranny of our lives, including cell phone contracts, medical bills, employee handbooks, credit cards, nursing home contracts – you name it. Supporters of the FAIR Act recognize that the deck is “stacked against American consumers” and has been for far too long. One lawmaker described arbitration as, “just another tool for powerful corporate interests to avoid accountability.” The Act prohibits businesses, including nursing homes, from using binding, pre-dispute arbitration agreements. Under the Act, arbitration is allowed; however, the parties must agree after a dispute arises.

Important Considerations in Choosing a Maryland Nursing Home

September 26, 2019 | Lebowitz & Mzhen

Nursing homes are an inevitable part of many American’s lives. It used to be that aging loved ones would spend the last few years of their life in the homes of family members. However, as the percentage of dual-income families grows, fewer families are able to accommodate the needs of an aging family member. Additionally, people are now living longer than ever, meaning there is a greater need for long-term care. The result is that Maryland nursing homes are caring for more residents than ever.

Choosing a nursing home is a major decision, akin to selecting a school for a child. Families looking to choose a nursing home for a loved one have access to a fair amount of information, including the safety statistics from each home. However, nursing homes will not often inform prospective residents about these tools. While there is a significant amount of information online, it is best to personally visit the home to get a feel for how residents are treated.

Below is a list of factors that Maryland families should consider when selecting a nursing home for their loved one: