Articles Posted in Nursing Home Negligence

Arbitration clauses are very popular in the nursing home industry. Arbitration is a way to resolve a legal dispute without using the court system. Generally, arbitration is quicker and less expensive than a traditional lawsuit. At first glance, this may seem like a good alternative for many Maryland nursing home residents who want to bring a case against a negligent or abusive nursing home employee. However, arbitration typically favors the nursing home and should be avoided whenever possible.

Often, the paperwork presented to a prospective resident or the loved one in charge of their care contains an arbitration clause. These clauses essentially waive a resident’s right to pursue a case against the nursing home in court for any claim brought against the nursing home. However, nursing home residents are not provided anything waiving this right, and should carefully consider whether it is a right they want to waive.

Arbitration involves an independent arbitrator who hears the claim and renders a decision. The arbitrator that will hear the case is determined by the nursing home, and is typically included in the arbitration clause. Arbitration hearings often have strict time frames and relaxed rules of evidence, allowing savvy nursing homes who are familiar with the process and its rules to effectively defend against cases brought by residents. In a way, this gives nursing homes the “home-field advantage.”

In general, the damages that are available to a Maryland personal injury plaintiff are designed to put the plaintiff back in the same position they were in before the defendant’s negligent actions impacted their life. Thus, most damages are referred to as “compensatory” damages, because they compensate a plaintiff for the injuries they suffered as a result of the defendant’s conduct. However, in some cases, punitive damages may also be appropriate.

Punitive damages differ from compensatory damages because the focus of a punitive damages award is not on the plaintiff, but on the defendant. Punitive damages are designed to punish the defendant for especially egregious behavior, and to deter future parties from engaging in similar behavior. For this reason, obtaining punitive damages requires proving additional facts. In Maryland, punitive damages cannot be obtained unless the plaintiff can show that the defendant acted with “actual malice.” A recent case illustrates how it can be difficult to obtain punitive damages.

In this case, the plaintiff was the estate of an older woman who passed away while living at the defendant nursing home. After the woman’s death, her estate (the plaintiff) filed a wrongful death claim against the nursing home, claiming that its negligence was the cause of woman’s death. Among other claims, the estate sought punitive damages based on staff members’ failure to care for the woman. The trial court preliminarily approved the claim for punitive damages, and the defendant immediately appealed.

Nursing homes have long had a reputation for providing less-than-stellar care to residents. Indeed, every day there are new allegations of Maryland nursing home abuse or neglect. However, according to a recent government study, the total number of instances of nursing home abuse and neglect is actually under-reported.

CNN recently discussed a newly released report issued by the Department of Health and Human Services, concluding that one in five emergency room visits by nursing home patients is the result of abuse. The study analyzed over 37,000 emergency room admissions that were reported to the Center for Medicare and Medicaid (CMS). Also startling is the fact that “nursing homes frequently failed to report incidents of abuse to either CMS or local law enforcement, as required by federal regulators.”

The Office of the Inspector General for the Department of Health and Human Services told reporters that he fears instances of nursing home abuse are under-reported and that CMS can do a better job preventing abuse and neglect by using available data to target facilities with recurring reports of misconduct.

Over the past few months, we have frequently covered cases and news stories discussing the issue of mandatory arbitration clauses that are contained in Maryland nursing home contracts. In Maryland and around the country, arbitration clauses continue to be one of the most contentious issues in many cases that are filed against nursing homes based on either the neglect or abuse of a resident. If enforceable, an arbitration clause can prevent a nursing home resident or their loved ones from pursuing a claim against the facility in court.

In a recent case issued by a state appellate court, a nursing home arbitration agreement was held not to be applicable against a resident’s son, although the resident’s son was the person who signed the form. According to the court’s opinion, the resident was admitted to the defendant nursing home in 2015. At the time, he was suffering from sepsis and chronic renal failure. The man’s son (the plaintiff) accompanied him to the nursing home and facilitated his admission.

The day after his father was admitted into the nursing home, the plaintiff was presented with a stack of documents to sign. Among these documents was one that, by signing, the plaintiff purported to consent to arbitration if the mediation process was not successful in resolving the case. All documents were signed.

While most Maryland nursing homes and skilled care facilities are for-profit businesses, some Maryland nursing homes operate as non-profit organizations. The question occasionally arises whether a nursing home’s status as a non-profit organization can affect a resident’s ability to recover for any injuries that were due to the neglect of the facility’s staff members. The answer, as is often the case in legal questions, is “it depends.”

Maryland law offers immunity to both volunteers as well as to charitable organizations. Depending on the specific circumstances of a case, either or both of these immunities may apply. Maryland law defines a charitable organization as one that is tax-exempt under § 501(c)(3) of the Internal Revenue Code.

Under the Maryland Volunteer Service Act, those who volunteer at charitable organizations cannot be held liable for amounts in excess of any personal insurance they carry for any injuries caused by the acts or omissions of “an officer, director, employee, trustee, or another volunteer.” When a volunteer’s actions result in injury to another, the volunteer will be afforded the same protection unless their actions constitute “gross negligence, reckless, willful, or wanton misconduct, or intentionally tortious conduct.” Importantly, the Volunteer Service Act does not grant complete immunity to qualifying volunteers and allows for a Maryland nursing home resident to pursue a claim for compensation. However, the resident will only be able to recover up to the limits of the individual’s insurance coverage.

The validity and enforceability of arbitration agreements have recently become very important issues in Maryland nursing home abuse and neglect cases. Typically, these agreements are contained in the pre-admission paperwork that a resident or their loved one is asked to sign before the resident is admitted. Needless to say, this is a very stressful and emotional time, and prospective residents and their family members may not always have a full appreciation for the rights they give up by signing an arbitration agreement.

As a general rule, courts will enforce an arbitration agreement as long as it is valid and executed correctly. One crucial question that courts will ask when determining the validity of an arbitration agreement is whether both parties knew what they agreed to when they entered into the agreement. A recent article discusses a case in which an arbitration agreement did not bind a nursing home resident because the contract was signed by her son, who did not speak English.

Evidently, back in 2017, an 86-year-old woman was admitted to the defendant nursing home after a left-knee replacement surgery. Because of her age and frailty, the woman was identified as a high-risk patient. During her stay at the defendant nursing home, she claimed that a nurse at the facility “recklessly pushed” her wheelchair into a bathroom door, causing her to break her patella.

One would like to think that aging service members are provided with the care and compassion they deserve as they begin to require more and more assistance with their daily routine. However, Veterans’ Administration (VA) nursing homes have been continually under scrutiny for the poor quality of care they provide residents. A recent report illustrates just a few of the horrors that VA nursing home residents across the country are experiencing.

According to a report by USA Today, in VA nursing homes across the country, veterans are suffering actual harm due to a variety of deficiencies. Evidently, private inspectors determined that residents in 52 of the 99 surveyed homes suffered some type of actual harm based on the inadequate level of care being provided by staff. A Washington, D.C. VA nursing home was among those in which residents suffered actual harm. Several other VA nursing homes were found to have put residents in “immediate jeopardy.”

One of the most common problems inspectors found was that residents in many of the VA nursing homes suffered from preventable bedsores. Bedsores develop when a person who is confined to a bed remains idle for too long. Bedsores can be prevented by frequently rotating a resident, or providing a resident with ample cushion under their body. Inspectors noted that one resident developed five bedsores in just six months. However, when inspectors went to visit this resident, they determined that no staff member had moved the man, or provided him with additional cushions to alleviate the condition.

While many of the Maryland nursing home cases we handle involve egregious instances of physical and sexual abuse committed against residents, the harms that befall neglected nursing home residents are often just as serious. Maryland nursing home residents are placed in skilled nursing facilities because they are unable to take care of their own basic needs. Thus, residents rely on nursing home staff for assistance with eating, bathing, using the bathroom, taking medication, and other daily tasks. When nursing home staff members fail to provide the individualized care and attention that a resident needs and deserves, a resident’s health will naturally suffer as a result.

By accepting a resident into its care, a Maryland nursing home assumes both a contractual and legal duty to provide a certain level of care to the resident. If the resident’s condition worsens or is otherwise injured due to a facility’s failure to provide necessary services, the resident or a family member may be able to pursue a claim for compensation against the facility.

Family Considers Lawsuit Following Resident’s Death

Last month, an 86-year-old veteran died while he was in the care of a nursing home. According to a local news report, nurses discovered an infection in the resident’s groin on February 16, 2019. At the time, the nurse taking the report indicated that she could smell that the man had an infection upon entering his room.

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Nursing homes take on an enormous responsibility when they accept a resident into their care. Of course, a Maryland nursing home is required to provide residents with a safe living environment, keeping residents free from the potential abuse of staff members and other residents. However, there is also an affirmative duty taken on by nursing homes to provide a certain level of care. When a nursing home fails to live up to this standard, the facility may be liable through a Maryland nursing home negligence lawsuit.

There are many different types of nursing home negligence. Nursing home residents are often unable to provide for their own basic needs, and rely on others to help them with routine daily tasks such as bathing, eating, and taking medication. In some cases, patients suffer bedsores after a neglectful nurse fails to check up on them as frequently as necessary. One area of care that is infrequently discussed is the level of medical care that a nursing home is required to provide.

Of course, nursing homes are not expected to function at the level of a hospital. However, nursing homes should employ properly credentialed staff who are educated on how to care for an at-risk population. Thus, certain failures are inexcusable. According to a local news report, a Veterans’ Administration (VA) nursing home was fined for providing the wrong medication to a resident. Evidently, the home was cited for providing the wrong medication as well as for administering medication in a manner that did not follow the physician’s instructions.

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Over the past several years, there has been a significant increase in the number of reported instances of Maryland nursing home abuse and neglect. In part, this is due to increased awareness of the problem, as social media has allowed for news of these disturbing events to disseminate more easily. However, experts still believe that the majority of nursing home abuse and neglect goes unreported.

Experts believe that there are several causes of nursing home abuse and neglect. Not surprisingly, most of the causes relate to the environment created by nursing home management rather than specific issues with individual nurses or employees. However, some nurses are better suited for the job. Often, this is due to the level of training or experience the nurse has obtained.

Studies have shown that low staffing levels are correlated with increased instances of abuse and neglect. Thus, it is generally agreed that the more stressful the work environment, the more likely employees are to “snap.” According to a recent article, Maryland and Virginia nurses are offered some of the lowest rates to provide in-home care to residents. Apparently, in-home nurses in Virginia and Maryland make only $20 to $35 per hour. This is about 30% lower than nearby states. As a result, qualified nurses are leaving Maryland and Virginia to pursue employment in states where they can earn a better living. Thus, residents are having a difficult time securing in-home nurses, especially during off-peak hours and on weekends.

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