Nursing Home Negligence

Police Investigating Elder Abuse After Resident Found with Maggot-Infested Wounds

October 27, 2017 | Lebowitz & Mzhen

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.

Under 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.

Proving Abuse or Neglect in Maryland Nursing Home Cases

September 7, 2017 | Lebowitz & Mzhen

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.

For 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.

Investigation Reveals Maggot Infestation in Resident’s Tracheostomy Due to Facility’s Neglect

August 21, 2017 | Lebowitz & Mzhen

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.

One 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.

Appellate Court Permits Nursing Home Abuse and Neglect Case to Proceed Toward Trial

July 21, 2017 | Lebowitz & Mzhen

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.

A 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.

Appellate Court Upholds Nursing Home Arbitration Clause Despite Flaws in the Contractual Language

June 7, 2017 | Lebowitz & Mzhen

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.

The 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.

Overworked and Overstressed Nurses Are More Likely to Make Serious Mistakes

April 14, 2017 | Lebowitz & Mzhen

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.

For 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.

Nursing Home Arbitration Clauses Are Not Necessarily Binding, Depending on the Circumstances

March 31, 2017 | Lebowitz & Mzhen

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.

While 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.

Nursing Home Residents Are at Risk for Neglect and Abuse

March 17, 2017 | Lebowitz & Mzhen

A family’s worst nightmare may be that their loved one is being abused in a long-term care facility, but neglect is another form of mistreatment, and can also have devastating consequences. Neglect is the failure to care for a person in a manner that would avoid harm and pain, or the failure to react to a situation that may be harmful. Neglect can be intentional or unintentional. Examples of unintentional but neglectful care include: incorrect body positioning, lack of assistance eating and drinking, lack of bathing, and ignoring calls for help.

Abuse and neglect often are not obvious, but there may be signs that can hint at both. Some of these signs are dehydration, malnutrition, bruises, food poisoning, poor hygiene, bed sores, falls, and wandering. There are different statutes and regulations that protect the rights of senior citizens and nursing home residents.

Rights of Nursing Home Residents

Nursing home residents have the right to live in a safe environment and to be free from mistreatment. Mistreatment involves abuse, including physical, mental, verbal, and sexual abuse, neglect, or the failure to provide proper care to a resident, and exploitation, or the illegal or improper use of a resident’s money or belongings.

State Halts New Admissions to Nursing Home Amid Abuse Allegations

January 20, 2017 | Lebowitz & Mzhen

A recently published local news article discusses allegations of abuse that have resulted in state authorities preventing a privately owned nursing facility from admitting new residents until the allegations are properly investigated and any necessary remedial action is taken. Although the report notes that state prosecutors appear unlikely to pursue criminal charges against the parties responsible for the alleged abuse, victims of the abuse or neglect may still have claims for financial damages by filing a civil nursing home abuse or nursing home neglect lawsuit with the help of experienced legal counsel.

State Administrative Report Details Abuse Against at Least Eight Residents

According to the report, the state regulatory authority was the first to receive notice that there was possible abuse or neglect occurring at the Brookhaven Manor nursing home in Kingsport, Tennessee. Authorities suspended the nursing home from taking new residents after an initial investigation found credible evidence corroborating the claims of abuse and neglect.

While these reports of abuse and neglect detail conduct that would certainly be criminal under state law, the prosecuting attorney’s office expressed doubt that any charges would be pursued. The attorney noted frustration with the fact that his office was not notified of any of the allegations or allowed to perform any investigation until after the state administratively sanctioned the home. This compromised the investigation by giving allegedly culpable parties an opportunity to tamper with evidence of wrongdoing.

Lack of Trained and Competent Nurse Aides Results in Hygiene Problems, or Worse

November 10, 2016 | Lebowitz & Mzhen

An article recently published by an NBC affiliate in New York helps document a disturbing trend of nursing home abuse and neglect that appears to be caused by understaffed nursing homes, as well as a lack of adequate training and competence among existing staff. According to the news report, an elderly nursing home resident and her family have filed a nursing home abuse lawsuit against a New Jersey nursing home after the resident was allegedly left covered in her own feces for hours as the nursing home staff failed to answer her calls for assistance. Although the proceedings are only in the early stages, the defendant has issued a statement denying any wrongdoing and attempting to discredit the plaintiffs’ claims.

Nursing Care Is Facing an Epidemic of Neglect and Incompetence

Many factors result in the recent increase in nursing home abuse and neglect complaints, which are often focused on the duties of lower-level staff, such as nursing aides and assistants. Many nursing home residents are not physically active and have few visitors or family members to check up on them. When neglect or abuse does occur, some patients are afraid or embarrassed to tell anyone about it, or they may not know what their rights are or how to make a claim. The majority of funding for nursing home care comes from the federal government through Medicare, and providers have been known to take advantage of the lack of accountability for government funds by employing too few workers and hiring low-cost, incompetent employees to provide care.