Maryland Nursing Home Lawyer Blog

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:

Can a Maryland Nursing Home Enforce an Arbitration Agreement Signed by a Loved One?

September 19, 2019 | Lebowitz & Mzhen

Under the current state of the law, Maryland nursing homes can ask potential residents to sign arbitration agreements. Often, these agreements are included in the pre-admission paperwork that must be completed before a resident is admitted. However, there are many issues that an arise affecting the enforceability of an arbitration agreement.

For example, courts have repeatedly held that an arbitration agreement is not valid if one party tells the other they must sign it. Similarly, for the most part, an arbitration agreement must be signed by the resident, because this is the person whose rights the agreement affects. However, routinely, nursing homes do not comply with the procedural and substantive rules governing arbitration agreements, rendering the agreements unenforceable. In a recent opinion, a state appellate court held that an arbitration agreement was unenforceable based on several criteria.

According to the court’s opinion, the plaintiff’s mother was a resident at the defendant nursing home. During her stay, she developed severe skin ulcers that ultimately required the amputation of her leg. The plaintiff’s mother died just a few days after leaving the home, and the plaintiff filed a wrongful death lawsuit against the facility.

When Can a Maryland Nursing Home Be Held Responsible for an Employee’s Abusive Conduct?

September 12, 2019 | Lebowitz & Mzhen

Although it may be difficult to comprehend, nursing home abuse is more common than most people think. In fact, thousands of nursing home residents report abuse or neglect each year. Many of these victims turn to the court system for justice. As experienced Maryland nursing home abuse attorneys, one of the most common questions we receive is, under what circumstances can a nursing home be held liable for an employee’s conduct?

A recent decision issued by a Virginia appellate court considers this exact question. According to the court’s opinion, a nursing assistant molested and raped an 85-year old nursing home resident. Before the case reached trial, the woman died from unrelated causes. However, the woman’s estate pursued a Virginia nursing home abuse case against the facility where the rape occurred.

The estate made several claims against the nursing home, including one that the nursing home was vicariously liable for the employee’s actions. Vicarious liability is a legal theory that allows for one party to be held responsible for another party’s actions. Personal injury plaintiffs often use the theory of vicarious liability to hold an at-fault party’s employer liable for their injuries. However, vicarious liability only applies when the defendant is acting within the scope of their employment.

Suing Maryland Nursing Homes Based on Medication Errors

September 5, 2019 | Lebowitz & Mzhen

In the tragic event of a death due to a Maryland pharmacy error, the victim’s family may be able to file a wrongful death claim against the person or entity responsible for the error. Maryland wrongful death claims are intended to compensate family members for their own loses due to their loved one’s untimely death. Maryland’s Wrongful Death Act (the “Act”) allows some family members to file suit against the party at fault. Normally, it must be filed by a spouse, parent, or child of the decedent, but may be filed by another dependent in some cases. The Act was enacted in order to compensate family members, as opposed to the decedent’s losses, which could be recovered by the decedent’s estate.

Under the Act, a claim can be brought for a wrongful act, neglect, or default that would have allowed the decedent to file a claim for damages if the decedent were still alive. A wrongful death claim can only be filed once and must be filed within three years of the decedent’s death. There are some exceptions, including in the case of an occupational disease.

The plaintiffs in a wrongful death claim may be able to recover compensation for emotional pain and suffering, loss of companionship, mental anguish, parental care, marital care, filial care, advice, and guidance.

Maryland Courts May Set Aside Arbitration Agreements for Fear of Inconsistent Rulings

August 28, 2019 | Lebowitz & Mzhen

Generally, when a nursing home resident enters a facility, the nursing home administration asks the resident (or the loved one accompanying them) to sign an arbitration agreement. If valid, arbitration agreements require the resident to resolve any cases that arise between the parties through arbitration. However, when a Maryland nursing home resident is the victim of abuse or neglect, there are frequently several parties – often the resident’s children – who may pursue a claim against the facility. This can complicate the effectiveness of arbitration, as shown by a recent state appellate decision.

According to the court’s opinion, a son helped his mother get admitted to a nursing home after a shoulder injury. Upon admission, the woman was confused and could not sign any paperwork due to her injury. Thus, her son signed the pre-admission paperwork, including an arbitration agreement.

While in the facility’s care, the woman passed away due to what appeared to have been nursing home neglect. The woman’s son, as well as her other children, filed a wrongful death case against the nursing home. The nursing home objected to the lawsuit being filed in court, pointing to the arbitration agreement signed by the woman’s son.

Social Media Posts May Be Key Evidence in Maryland Nursing Home Abuse and Neglect Cases

August 22, 2019 | Lebowitz & Mzhen

Maryland nursing home abuse takes a significant physical and psychological toll on the victims and their families. Recently, a national news outlet reported on a disturbing nursing home abuse case. Evidently, nursing home aides were accused of abusing a resident, recording the incident, and posting it on SnapChat. Maryland nursing home residents may face these situations, and families must be aware of this type of abuse.

Historically, people thought nursing home abuse to be mostly physical in nature. However, verbal abuse and public shaming through social media is a very real form of abuse in today’s society. Some common signs that a loved one is suffering from abuse or neglect are weight loss, changes in temperament, and unexplained injuries. However, sadly, many elderly victims suffer from severe memory loss or dementia and may not be able to recall the abuse. If a family suspects abuse and emergency medical treatment is needed, the family should contact police officials.

Additionally, the family should gather information to substantiate their claim of abuse or neglect. Loved ones should take photos, speak with other residents, and save anything that may contain evidence. Evidence gathering includes taking screenshots of any internet posts and keeping videos posted on social media platforms. Loved ones must be removed from an unsafe living arrangement. Finally, families should contact a Maryland nursing home abuse attorney to discuss their rights and remedies.

New Rule Allows Maryland Nursing Homes to Include Arbitration Agreements in Pre-Admission Paperwork

August 14, 2019 | Lebowitz & Mzhen

For decades, arbitration has been the favored way for Maryland nursing homes to resolves dispute made by residents and residents’ families. In part, this is because arbitration is confidential, meaning that the facility does not need to worry about the news of a resident’s injuries or suffering getting out. However, there is also evidence suggesting that nursing homes get better results in cases that go to arbitration. Arbitration is also less expensive, which primarily benefits nursing homes, as they are the party who is frequently engaged in litigation.

While arbitration is rarely, if ever, in the best interest of a nursing home resident, many residents end up signing agreements to arbitrate their claim. Often, prospective residents are presented with these agreements in highly stressful times when they may feel as though they have limited options. Other times, residents sign arbitration agreements because they do not fully understand the rights they are giving up by signing, and feel pressured to sign. Consequently, many residents who suffer abuse or neglect at the hands of their caregivers are devastated to learn that they cannot file a lawsuit in court, and must proceed through the arbitration process.

In 2017, the Center for Medicare and Medicaid, under the Obama administration, implemented a ban on arbitration agreements in pre-admission paperwork for all nursing homes that accepted Medicare or Medicaid. However, under a new rule scheduled to go into effect on September 16, 2019, nursing homes will once again be able to include arbitration contracts in their pre-admission paperwork.

What Role Do Maryland Courts Have in Enforcing Nursing Home Arbitration Clauses?

August 6, 2019 | Lebowitz & Mzhen

Most nursing home admission paperwork contains an arbitration clause. By signing an arbitration clause, a nursing home resident agrees to resolve any claims that may arise between the resident and the nursing home through arbitration, rather than through the court system. It is widely understood that arbitration offers great benefits to nursing homes, often to the detriment of nursing home residents and their family members. Thus, plaintiffs in Maryland nursing home lawsuits often seek to void arbitration clauses so they can pursue a claim in court.

Recently, a state appellate court issued an opinion in a nursing home negligence lawsuit requiring the court to determine if an arbitration clause required the plaintiff to resolve his wrongful death claim through arbitration. According to the court’s opinion, the plaintiff’s father passed away while in the care of the defendant nursing home. The plaintiff filed a wrongful death claim in court against the parent company of the nursing home.

Evidently, the plaintiff’s father signed an arbitration clause upon his admission to the facility. The clause was signed by the plaintiff’s father and a nursing home representative. The document contained a “delegation clause” stating that the agreement included “all affiliates, parents, officers, owners, members, agents, successors and assigns” of the nursing home. The nursing home claimed that the agreement required the plaintiff to resolve his claim through arbitration.