Articles Posted in Nursing Home Negligence

Earlier this month, an appellate court in California issued a written opinion in a personal injury case presenting an interesting issue that often arises in Maryland nursing home abuse and neglect cases. The case required the court to determine if an arbitration agreement was valid when it was signed by a resident’s family member who possessed a valid power of attorney at the time the document was executed. Ultimately, the court concluded that the decision of whether to admit someone to a nursing home constitutes a “health care decision,” which was not a right conferred by the power of attorney document.

Signing a ContractThe Facts of the Case

The plaintiff was the surviving loved one of a woman who died shortly after leaving the care of the defendant nursing home. Prior to the resident’s admission, the resident had executed two relevant documents. The first, executed in 2006, was a health-care power of attorney executed in favor of the plaintiff. The second, executed in 2010, was a personal-care power of attorney executed in favor of the plaintiff as well as the resident’s sister.

After the second document was executed, the resident’s sister placed the resident in the defendant nursing home. Prior to admitting the resident, the resident’s sister executed a pre-admission contract that contained an arbitration clause whereby both parties agreed to submit any claim that arose between the two to binding arbitration rather than the court system.

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When a Maryland nursing home accepts a resident into its care, the home takes on a responsibility to provide a certain level of care to the resident. Of course, this includes ensuring that the resident’s most basic physical and health-care needs are met, but it also requires that the home maintain the facility in a safe and clean manner. When nursing home management fails to live up to this standard, the home may be held liable through a Maryland nursing home negligence lawsuit.

Nursing Home HallwayMany nursing homes accept financial assistance from the federal government, through programs such as Medicare and Medicaid. By doing so, the nursing home also takes on an obligation to provide the type of care to residents that the government expects. A recent news article discusses a federal lawsuit that was recently settled after disturbing discoveries were made regarding the condition of the facilities.

The allegations arose from inspections that occurred back in 2008 and 2009. Inspectors noted that the home was infested with rats, mice, and cockroaches. One resident’s account was truly shocking. Evidently, the bedridden resident was complaining of leg pain to nursing home staff. When the staff member pulled back the blankets covering the resident’s lower body, a snake jumped out at her.

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Maryland nursing home lawsuits are not always results of glaring, intentional abuse. In many cases, lawsuits arise after a nursing home or another long term care facility fails to properly care for a resident. Spotting neglect can be difficult, since many residents are elderly and sick already. However, families must remain vigilant in order to identify instances of neglect. Families should look for certain potential signs, such as poor personal hygiene, including poor dental health; lack of mobility, which may be caused by remaining bedridden for too long; unexplained injuries, such as bruises and broken bones; unsanitary living conditions and inadequate security; physical symptoms from lack of nutrition; and psychological issues, including anger, resentment, and depression.

Hospital BedIn cases of extreme neglect that result in the death of a resident, family members can bring a wrongful death claim against the nursing home. Maryland’s Wrongful Death Act allows a claim to be brought against a person or entity “whose wrongful act causes the death of another.” Generally, the claim must be made within three years of the family member’s death.

Lawsuit Alleges Resident’s Death Caused by Improper Care

A 74-year-old woman died after a nursing home allegedly failed to properly care for the woman. According to a news report covering a recently filed lawsuit filed by the woman’s family, the nursing home failed to properly care for her hygiene, to properly reposition her during bedrest, and to provide her with adequate nutrition and hydration, which caused the woman pressure sores and infections, respiratory failure, swallowing problems, septic shock, and pneumonia, leading to her death.

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Nursing homes are responsible for caring for their residents. However, there are countless instances of nursing home abuse or neglect in Maryland and throughout the country. Neglect of a Maryland nursing home resident includes a failure to care for a resident in a way that would avoid harm or pain, or a failure to react to a harmful situation.

Hospital BedUnder the Code of Maryland Regulations (COMAR) 10.07.02.12, a nursing home must have a licensed nurse on duty 24 hours a day to provide bedside care in order to ensure that the resident:  receives proper treatments, medications, and diet; receives proper care to prevent ulcers and deformities; is well-groomed, comfortable, and clean; is protected from accidents, injuries, and infections; receives rehabilitative nursing; and is assisted in self-care and group activities. In addition, a licensed nurse must be on duty at all times and should be able “to recognize significant changes in the condition of patients and to take necessary action.” That nurse is responsible for making daily rounds to all nursing units. In addition, any nurse who questions the care that is being provided to a patient must report the issue to the supervisor.

Hospital Staff Uncover Serious Concerns After Nursing Home Resident Transported for Fever

Police in Memphis, Tennessee are investigating an incident of alleged elder abuse after a man was found in a dire state after being brought to the hospital for a fever. The police report states that the nursing home resident was brought to the hospital after he ran a high fever. However, at the hospital, staff and a social worker said they found five open wounds on his body, a bruise on a stomach, and severely dry skin that was “flaking off his body.” They also found maggots inside wounds where his left foot and right leg had been amputated. According to the hospital nurses, the staples were never removed from his right leg amputation, and the bandages had not been removed. He was also allegedly found in feces.

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Maryland nursing home plaintiffs must prove that the nursing home staff or management was somehow negligent or involved in some type of wrongdoing before they are able to recover compensation for their loved one’s injuries through a Maryland nursing home case. However, this can be difficult in some cases. For example, residents often have mental incapacities that prevent or restrict them from reporting or testifying about abuse, and it can be hard to uncover evidence corroborating the abuse. That being said, there are a number of ways in which abuse can be corroborated.

Old HandFor example, a facility may have resident records that make reference to an incident. In fact, federal law requires that nursing facilities maintain clinical records for all residents, and the records must be kept for at least five years. A facility’s failure to keep records may be used against the facility in court. Another potential source of information is other nursing home records apart from the resident’s records, such as employee schedules or training manuals that show whether a facility had adequate staff, training, and procedures in place at the time of the incident.

A resident’s statements about the incidents to others may also be admissible in some situations. Other residents or guests may have observed incidents or other issues within the facility. Expert witnesses can also testify about the facility’s training and procedures or a resident’s injuries, for example. Sometimes, there is video inside the facility or photographs that were taken after the incident.

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Nursing homes and other long-term care facilities are responsible for caring for their residents and providing them with a safe environment, free from mistreatment. Abuse and neglect can often be difficult to detect, particularly since many residents in long-term care facilities are unable to report their experiences for a number of reasons. Maryland nursing home abuse may be more obvious to an outsider, but neglect can be more difficult because it is often unclear what the cause of a resident’s condition is. Neglect is a failure to care for a person in a manner that would avoid harm and pain, or a failure to react to a situation that may be harmful, and it can be intentional or unintentional.

Caretaker's HandsOne news article recently exposed the dire conditions facing one nursing home resident in upstate New York. According to the article, a resident at a group home for the severely disabled was found with maggots in his throat. Ever since the resident was in a car accident 26 years ago, he had been unable to walk, speak, or breathe without the help of a ventilator. After the maggots were found in the 41-year-old resident’s throat last summer, he was sent to the emergency room and treated. Apparently, this was not an isolated incident, since the resident had to make several trips to the hospital.

The State conducted an investigation of the incident and found that the resident had been neglected by caretakers. The investigation determined that the maggots in the resident’s throat resulted from the neglect by his caretakers. The staff members were supposed to keep his tracheostomy clean, but for several days, they neglected to do so. The investigation did not uncover which employees were at fault—so no employee was punished, and the investigation suggested instead that the home “consider” brushing up on training on the care of tracheostomies.

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One of the most significant hurdles Maryland nursing home abuse and neglect cases face early in the process is overcoming a defense motion for summary judgment. Summary judgment is a mechanism by which either party – although very often the defense in personal injury cases – asks the court to resolve the case because the other party cannot legally win the case based on the evidence presented.

StethoscopeA nursing home abuse or neglect plaintiff can overcome a defense motion for summary judgment by showing that there is some issue of material fact that should be resolved by a jury. However, if no issues of fact are present – and the only issues are legal in nature – the court will enter summary judgment in favor of the moving party. A recent case illustrates how one trial court applied the summary judgment standard incorrectly.

The Facts of the Case

The plaintiffs were the surviving family members of an elderly woman who died while in the care of the defendant nursing home. The resident was admitted to the nursing home in March 2012 after being discharged from the hospital. Upon admission, the resident suffered from severe pulmonary and kidney conditions. Initially, the resident showed signs of improvement; however, about two months after her admission, the resident’s health began to decline due to a septic infection. The resident died from complications relating to the infection a short time later.

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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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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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It is common for anyone seeking admission into a nursing home to be presented with an arbitration agreement prior to being admitted. These arbitration clauses are often hidden in large paragraphs of small print and are easy to overlook. However, once signed, arbitration clauses often waive important rights and can have a major effect on a party’s ability to file a lawsuit against the nursing home, should anything go wrong in the future.

Binding ContractWhile a valid arbitration agreement may prevent a victim of nursing home abuse or neglect from using the court system to pursue a case against the at-fault nursing home, not all arbitration agreements are valid. In fact, a series of recent court decisions across the country has indicated courts’ willingness to declare arbitration agreements invalid when they are not signed by the appropriate party, too hidden, or entered into by an incompetent party.

A recent case out of Florida illustrates how courts may choose to invalidate an arbitration agreement when the person signing the contract is not the resident themselves.

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