Articles Posted in Nursing Home Negligence

Many Maryland families will one day make the decision to place a loved one into a nursing home, if they have not already. As the population ages, nursing homes are becoming more and more necessary for individuals who can no longer care for themselves and need assistance in their daily activities. While many residents may have pleasant experiences in their nursing homes, the tragic fact is that nursing home abuse and neglect are still common occurrences in Maryland and nationwide. In fact, one survey of nursing home residents showed that up to 44% of them had been abused at some point, and almost 95% had witnessed someone else be neglected. Despite its prevalence, this abuse and neglect might sometimes fly under the radar, especially when the resident victims are ill, confused, and unable to report it themselves.

Thus, unfortunately, the onus may be on family members to identify abuse or neglect in nursing homes. In some situations, the signs will be subtle, or easily written off as something else. Still, family members should, when visiting their loved ones in Maryland nursing homes, pay close attention to some “red flags” that may indicate abuse or neglect.

Some of the signs are situational—what are the living conditions like? Unsanitary conditions in the residence may be a sign of general neglect. Other signs have to do with resident behavior. Does the resident act oddly when staff members are around? Do they have sudden unusual behaviors, such as a fear of being touched or extreme irritability? Lastly, the physical condition of the resident can shed some light on the situation. Unexplained bruises, cuts, or other injuries should definitely raise concern, as should poor hygiene, sudden weight loss, falls, fractures, or infections.

When Maryland families move a loved one into a Maryland nursing home, they are entrusting the home and the staff to take care of their loved one, to keep them safe, healthy, and comfortable. Tragically, however, nursing home neglect is a significant problem in nursing homes across the country, and Maryland is no exception.

Nursing home neglect can take many forms. Perhaps staff members fail to check up on a sick resident every hour, as they are supposed to, and as a result, the resident suffers alone with no one realizing. Neglect can also be medical neglect—failing to take medical concerns seriously, or administer medication on time. Sometimes neglect can simply be leaving the resident alone when they are in dangerous circumstances.

For a tragic example of neglect, take a recent nursing home death where a 90-year-old woman was found dead outside her nursing home one morning. According to a local news article covering the incident, the resident allegedly got into an argument with a staff member at the nursing home one night and walked outside to get some space. The next morning, she was found dead on a bench on the property. Temperatures that night dropped to around 26 degrees, and it is suspected that the resident froze to death. The resident’s family was not even contacted by the nursing home—they found out of the death only through the local coroner’s office.

When someone is unable to care for themselves, they will often end up staying in some sort of residential institution, such as a nursing home or a rehabilitation center. These facilities are supposed to care for individuals and make their lives easier. Maryland law imposes a duty on these facilities to care for their residents, and if residents suffer abuse or neglect, such as neglecting medical needs or causing psychological harm, they can hold the institution liable in a civil negligence suit.

One of the most common types of lawsuits filed against a nursing home is a medical malpractice claim, particularly for failing to transport a patient to the hospital when they clearly needed to be treated by a professional. In a recent opinion, a state supreme court considered one of these cases, affirming a jury verdict awarding over $2.2 million dollars to the plaintiff.

According to the court’s written opinion, the seventy-six-year-old plaintiff began experiencing significant knee pain in her right knee, causing her to undergo surgery in early 2014. To recover from the surgery, the plaintiff was transported to a rehabilitation center. While in the center, the plaintiff continued to experience excruciating pain and then began showing signs of confusion in mid-March of 2014. The notes taken by nursing assistants caring for her indicated her confusion, which got worse throughout the night, an elevated heart rate, massive bruising on her leg, and that her right foot curled inward and appeared to be limp. According to the notes, the plaintiff told the nursing assistants that she was in the worst pain of her life, asking them to shoot her to end her misery.

More and more Maryland nursing homes are having their residents sign arbitration agreements, raising concerns for victims of nursing home injuries, abuse and negligence. Arbitration agreements force residents to settle disputes with the nursing home through arbitration, a private and confidential process with no possibility of appeal, rather than having the option to bring a civil negligence suit in court. Essentially, by signing an arbitration agreement, which may or may not be obvious and apparent in the nursing home’s contract and forms, Maryland residents may be waiving their right to sue if something goes wrong.

Arbitration agreements come in many forms, however, and just because a resident signed one does not necessarily mean that they have unequivocally waived their right to sue. Many arbitration agreements dictate a specific type of claim that must be settled in arbitration, leading to eventual disputes over whether or not a plaintiff’s claim falls into that category. For example, a state appellate court recently issued an opinion considering such a dispute in a wrongful death and negligence claim. According to the court’s written opinion, the resident was admitted to the nursing home in 2013 with various cognitive and physical ailments, including Parkinson’s disease, heart disease, dementia, psychosis, functional quadriplegia, and chronic kidney disease. When admitted, her son, as her representative, signed an “Admissions Agreement.” This agreement included an arbitration clause for “any dispute as to medical malpractice,” which was further defined as disagreement over whether medical services rendered to the resident was necessary, unauthorized, or improperly, negligently, or incompetently rendered.

In 2016, a little over three years after living in the home, a nursing assistant was pushing the resident back to her room after breakfast. While on their way, the resident’s foot got caught in a loose cord, which catapulted her headfirst onto the floor, breaking her neck. Tragically, the resident died five days later due to her injuries. In the aftermath, her estate sued the nursing home for wrongful death and negligence, and the nursing home moved to compel arbitration under the Admissions Agreement’s arbitration provision. However, the court found that the nursing home could not compel arbitration under their agreement, because the agreement only covered disagreements over medical services rendered. Although the incident led to medical services and medical evidence was produced against the defendant nursing home, the dispute was not itself over medical malpractice, and thus the nursing home could not force the plaintiffs to arbitrate.

Expert witnesses can be extremely helpful in Maryland nursing home abuse cases. They can help explain to the judge or the jury the extent of the injuries, or how the incident occurred. Typically, expert witnesses are very helpful for plaintiffs and may help them win their cases against negligent nursing homes. However, there are some instances where expert testimony is required—not just helpful—and plaintiffs might even lose if they do not have it.

Recently, a state appellate court issued a decision discussing when expert witnesses are needed to prove a claim of negligence and when they are not. According to the court’s written opinion, the complaint was brought as a wrongful death suit against the nursing home, in part for negligent staffing. The victim, a 71-year-old resident in the home, had been living in the facility for eleven years. One night, a licensed practical nurse (LPN) entered his room during her night shift, saw vomit on the resident’s clothing, and noticed that his stomach was distended. Concerned, the LPN reported what she had seen to other staff members but took no further action. Importantly, there was no Registered Nurse (RN) on staff during the night shift. It wasn’t until around 12 hours later, the next morning, when an RN actually examined the resident and had him taken to the emergency room. The resident was treated in the emergency room and then the intensive care unit, but unfortunately died that night from bowel complications.

The resident’s family and estate brought a wrongful death suit against the nursing home, claiming that the facility was negligent by not staffing the night shift with someone who could have properly assessed the victim’s condition. According to the plaintiffs, had there been an RN or someone else on staff, they likely would have realized the severity of the resident’s condition and transferred him to the hospital earlier, which may have saved his life. The defendants attempted to dismiss the claim against them, arguing that the staffing decision required professional nursing judgment, making it professional negligence, rather than ordinary negligence. A key difference between the two is that professional negligence requires expert testimony, something the plaintiffs did not have.

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.

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