Nursing Home Negligence

Maryland Nursing Home Abuse and Neglect May Go Unnoticed In Many Facilities

November 24, 2020 | Lebowitz & Mzhen

Abuse and neglect can, unfortunately, run rampant in Maryland nursing homes, putting residents in danger of serious injuries, illness, or even death. Oftentimes, incidents of abuse and neglect may go unnoticed or unreported, and residents or families of residents may have no idea of the extent of the problem. If, for example, 20 residents are all being abused or neglected in subtle ways not recognized by their families, family members may think their loved ones are in a safe facility and well taken care of when in reality they are not. Even if individual family members realize that their loved one is being harmed, they may assume that it is an isolated incident, or chalk it up to an accident. This is one of the key reasons that nursing home abuse and neglect in Maryland nursing homes can go on for so long and cause so much harm.

According to a recent news report, a group of about 15 people gathered outside a nursing home decided to speak out against the alleged abuse and neglect that their loved ones suffered during their time at the facility. The group believes that the situation is a crisis. For example, one woman’s father claims he was punched by a nursing home staff member. His family also found multiple bruises going up and down his body, which suggested that he was carelessly slung into a wheelchair. In addition, family members believe that residents are not being fed properly. One woman told reporters that her father lost almost 50 pounds, and that she believed “they are not feeding these people. They are starving them.” Another woman reports that her 76-year-old mother, who uses a wheelchair, has had three major falls in just seven months, including one where she broke her femur.

How Can You Detect Nursing Home Abuse?

As explained above, it can be difficult for families to uncover nursing home abuse and neglect. But when they uncover these tragic and alarming instances, state law allows them to hold the nursing home accountable through a Maryland personal injury lawsuit. These lawsuits can be incredibly valuable for victims of abuse and neglect and for their families. If successful, they can result in large monetary amounts awarded to the plaintiffs to cover the harm that was caused, including for medical expenses, pain and suffering, or even funeral and burial costs if the resident dies.

Learning to Identify Warning Signs of Maryland Nursing Home Abuse or Neglect

November 11, 2020 | Lebowitz & Mzhen

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.

What Are the Signs of Nursing Home Abuse and Neglect?

Some of the signs of abuse and neglect in a nursing home 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.

Maryland Nursing Home Neglect Puts Residents At Risk of Freezing to Death

October 23, 2020 | Lebowitz & Mzhen

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.

Holding Maryland Nursing Homes Accountable for Medical Neglect

February 19, 2020 | Lebowitz & Mzhen

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.

Maryland Nursing Home Abuse Victims May Be Able to File Suit Even If They Signed An Arbitration Agreement

February 11, 2020 | Lebowitz & Mzhen

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 in Maryland Nursing Home Abuse Cases

January 21, 2020 | Lebowitz & Mzhen

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.

Why Maryland Nursing Home Residents Should Avoid Arbitration Whenever Possible

July 12, 2019 | Lebowitz & Mzhen

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.”

Punitive Damages in Maryland Nursing Home Abuse and Neglect Cases

July 4, 2019 | Lebowitz & Mzhen

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.

How Common is Maryland Nursing Home Abuse?

June 19, 2019 | Lebowitz & Mzhen

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.

Arbitration Continues to Be a Hotly Contested Issue in Maryland Nursing Home Cases

June 12, 2019 | Lebowitz & Mzhen

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.