Articles Posted in Relevant Nursing Home Case Law

When a Maryland nursing home neglect lawsuit is filed, the case will proceed through several stages before it is ready to be heard. One of the most important pre-trial stages is the discovery stage, at which the parties request and exchange relevant information about the case.

ContractThe discovery stage presents an important opportunity for a plaintiff to develop their case, since this is often when the plaintiff receives information to which they may not otherwise have access. In most cases, a plaintiff will request any and all evidence that they believe is in the defendant’s control that will be potentially helpful to their case. Similarly, a plaintiff can request any evidence that may be harmful to their case so that they can be properly prepared to handle this evidence when it is presented.

In some cases, defendants may attempt to limit a plaintiff’s access to discoverable material by claiming that the evidence is covered under some privilege. In such situations, the parties will litigate pre-trial discovery motions in front of the court, which will have the ultimate decision regarding which evidence must be exchanged. A recent case involving wrongful death claims against a nursing home illustrates how a defendant nursing home may cite a privilege in an attempt to prevent a plaintiff’s access to certain evidence.

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One issue that often arises in Maryland nursing home cases is the effect of an arbitration agreement on a resident’s claim. In a recent case, one state’s appeals court considered whether an arbitration agreement was enforceable even though the resident passed away before the rescission period had passed.

ContractIn that case, an elderly woman had been a nursing home resident in a 24-hour nursing facility. After her death, the woman’s family filed a lawsuit against the nursing home facility, claiming elder abuse, negligence, wrongful death, and violations of the Patient’s Bill of Rights under state law. The nursing home argued that the case had to be resolved through arbitration because the resident had executed two arbitration agreements with the facility.

The arbitration agreements had language that was required by the state, which mandated that there be a 30-day “cooling off” period. During the cooling off period, either the nursing home or the resident could decide to rescind the agreement. The resident died 10 days after the woman signed the agreements, before the 30-day period had passed. The woman’s family argued that the agreements were not valid because the woman died before the expiration of the 30-day rescission period had ended.

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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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Over the past few months, there have been a number of nursing home abuse and neglect cases involving nursing home employees or management attempting to cover up the allegations made against them. Unfortunately, in some cases, this has turned out to be a successful tactic to evade liability, albeit through illegal and immoral means.

Folders of PaperAs a general rule, parties must preserve all of the evidence, including physical documents, emails, and even text messages, that may be relevant to a case as soon as that party has notice that a case was filed. This is because the opposing party is entitled to review all of the relevant documents through the process of pre-trial discovery.

Pre-Trial Discovery in Nursing Home Cases

In nursing home abuse and neglect cases in particular, pre-trial discovery is an integral process for the plaintiff. This is because there is likely little way for the plaintiff to have any knowledge of what goes on inside the walls of the nursing home, especially when the plaintiff’s loved one suffers from dementia or some other illness that affects their memory or ability to communicate.

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Last month, an appellate court in Georgia issued a written opinion in a case brought against a hospital involving allegations that the hospital was negligent in allowing the plaintiff to develop a stage IV bed sore. Ultimately, however, the court rejected the plaintiff’s case because the required expert affidavit that was filed along with the case failed to comply with state-law requirements.

Hospital RoomThe Facts of the Case

The plaintiff was admitted to the defendant hospital while he was unconscious. While he was being treated by the hospital, he developed a stage IV pressure ulcer near the base of his back. The plaintiff filed a personal injury lawsuit against the hospital, claiming that the hospital staff was negligent in failing to assess and treat the pressure ulcer and to properly care for him while he was unconscious.

As is the case in Maryland, under Georgia state law, medical malpractice plaintiffs must submit an affidavit in support of their claim. Essentially, the affidavit must come from a medical profession in a relevant field, and it must “set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

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Earlier this month, the United States Supreme Court issued a written opinion in a case brought by the surviving family members of two nursing home residents who died while in the care of the defendant nursing home. The case required the court to determine whether a state law was valid if it permitted a loved one of a nursing home resident to enter into binding arbitration only when they possess a power of attorney document that specifically mentions “access to the courts” as a conferred right. Ultimately, the court determined that the state law violated the Federal Arbitration Act.

Signing a ContractThe Facts of the Case

The plaintiffs were the surviving family members of two loved ones who lived in the defendant nursing home prior to their deaths. Prior to the residents’ admission to the facility, the plaintiffs completed the necessary pre-admission paperwork for each of the residents. One clause in the document stated that “[a]ny and all claims or controversies arising out of or in any way relating to . . . the Resident’s stay at the Facility” would be resolved through binding arbitration. At the time the paperwork was completed, the plaintiffs had valid documents indicating that they possessed powers of attorney for their loved ones that permitted they “dispose of all matters” related to their loved ones.

In the next year, both residents died while in the care of the nursing home. The nursing home asked the court to dismiss the case and require the plaintiffs to submit their cases through the arbitration process, as indicated in the pre-admission contracts. The state court rejected the nursing home’s argument, finding that a person’s access to the court system is a “sacred” right, and it can only be waived by an explicit statement in the power of attorney document.

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Earlier this month, the Supreme Court of Georgia issued a written opinion in a nursing home negligence case that required the court to determine if an arbitration agreement in a pre-admission contract was binding against the deceased resident’s estate in a subsequent wrongful death lawsuit. The court determined that due to the derivative nature of wrongful death lawsuits, the deceased resident’s estate was bound by the agreement.

Signing a ContractThe Facts of the Case

The plaintiff in this case was the husband of a woman who had died while in the care of the defendant nursing home. Prior to the plaintiff’s wife’s admission to the nursing home, the plaintiff’s wife had executed a durable power of attorney in her husband’s favor. This allowed him to make legal decisions regarding his wife’s medical and financial decisions.

Before the plaintiff’s wife was admitted into the defendant nursing home, the plaintiff signed a pre-admission contract that contained an agreement to arbitrate any claims that may arise from the nursing home’s care of his wife. The plaintiff signed the agreement.

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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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Earlier this month, the Supreme Court of Mississippi issued an interesting opinion for anyone who signed an arbitration clause when admitting their loved one to a nursing home. In the case, Tarvin v. CLC of Jackson, the court determined that the arbitration clause signed by the plaintiff on behalf of her elderly father was not binding because she did not have the legal right to waive her father’s rights, absent a determination of his incompetency.

Signing DocumentArbitration Clauses in Nursing Home Contracts

Whenever a party enters into a contract, they try to include as many favorable terms as possible. However, sometimes nursing homes can overreach, including arbitration clauses that may act to prevent the resident from using the court system to adjudicate any disputes between the parties. Indeed, if an arbitration clause is valid, the parties are required to go to arbitration instead of filing a lawsuit. This can have negative effects on plaintiffs, since usually the nursing home selects which arbitrator to use, giving rise to potential favoritism.

Arbitration clauses, however, are not always valid. In fact, in Tarvin, the court held that the arbitration clause at issue could not be enforced. The court explained that a nursing home resident’s right to use the court system is an important one, and it cannot be waived by just anyone. The court explained that it is only when a resident is deemed incompetent that a loved one can validly sign a binding arbitration agreement. In the Tarvin case, the doctor who determined the plaintiff’s father was incompetent was not his primary care provider. Thus, the court held that there was insufficient evidence proving the elderly man’s incompetence, and he did not validly consent to arbitration through his daughter.

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Earlier this month, a state appellate court issued a written opinion in a wrongful death case brought by the loved one of a nursing home resident whom the plaintiff claims was neglected prior to her death. In the case, Handy v. Madison County Nursing Home, the plaintiff’s claims were ultimately dismissed by the court during a summary judgment proceeding because the plaintiff failed to meet her initial burden to show that a prima facie case existed against the nursing home.

Signing DocumentsThe Facts of the Case

The plaintiff filed a wrongful death lawsuit against the nursing home that had cared for her mother in the three years leading up to her death. In her complaint, the plaintiff alleged that nursing home staff members were negligent in failing to detect a bowel obstruction that ultimately contributed to her mother’s early death. As a part of her case, the plaintiff attached a certification explaining that, if called to testify, her expert witness would explain that the defendant nursing home violated a standard of care it owed to her mother.

In a pre-trial summary judgment proceeding, the nursing home asked the court to dismiss the case based on the fact that the plaintiff failed to produce evidence of the home’s negligence. Specifically, the nursing home argued that the certification was not sufficient to prove negligence and that an expert’s affidavit was necessary. The plaintiff sought several continuances and failed to provide an expert’s affidavit at each scheduled listing. Eventually, the nursing home asked the court to dismiss the case based on a lack of evidence.

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