Articles Posted in Wrongful Death in Nursing Homes

Under the current state of the law, Maryland nursing homes can ask potential residents to sign arbitration agreements. Often, these agreements are included in the pre-admission paperwork that must be completed before a resident is admitted. However, there are many issues that an arise affecting the enforceability of an arbitration agreement.

For example, courts have repeatedly held that an arbitration agreement is not valid if one party tells the other they must sign it. Similarly, for the most part, an arbitration agreement must be signed by the resident, because this is the person whose rights the agreement affects. However, routinely, nursing homes do not comply with the procedural and substantive rules governing arbitration agreements, rendering the agreements unenforceable. In a recent opinion, a state appellate court held that an arbitration agreement was unenforceable based on several criteria.

According to the court’s opinion, the plaintiff’s mother was a resident at the defendant nursing home. During her stay, she developed severe skin ulcers that ultimately required the amputation of her leg. The plaintiff’s mother died just a few days after leaving the home, and the plaintiff filed a wrongful death lawsuit against the facility.

In the tragic event of a death due to a Maryland pharmacy error, the victim’s family may be able to file a wrongful death claim against the person or entity responsible for the error. Maryland wrongful death claims are intended to compensate family members for their own loses due to their loved one’s untimely death. Maryland’s Wrongful Death Act (the “Act”) allows some family members to file suit against the party at fault. Normally, it must be filed by a spouse, parent, or child of the decedent, but may be filed by another dependent in some cases. The Act was enacted in order to compensate family members, as opposed to the decedent’s losses, which could be recovered by the decedent’s estate.

Under the Act, a claim can be brought for a wrongful act, neglect, or default that would have allowed the decedent to file a claim for damages if the decedent were still alive. A wrongful death claim can only be filed once and must be filed within three years of the decedent’s death. There are some exceptions, including in the case of an occupational disease.

The plaintiffs in a wrongful death claim may be able to recover compensation for emotional pain and suffering, loss of companionship, mental anguish, parental care, marital care, filial care, advice, and guidance.

Nursing homes are supposed to provide residents with the assistance necessary to carry out their daily tasks. Many of these tasks are routine, and do not necessarily involve providing medical treatment. However, depending on the nature of a resident’s condition and limitations, nursing homes are responsible for providing basic medical care to residents. If a Maryland nursing home resident requires treatment that a nursing home is unable to offer, the home must arrange for the resident to be treated by another provider.

When a resident is injured or dies while under the care of a Maryland nursing home, the resident or their loved one can pursue a Maryland nursing home neglect case against the facility. However, depending on the specific allegations involved in the complaint, the case may be considered a “medical malpractice” case. This is important because Maryland law requires specific additional procedures to be followed in Maryland medical malpractice cases. A recent state appellate opinion illustrates how a plaintiff’s failure to comply with the exacting requirements precisely can result in their case being dismissed.

According to the court’s opinion, the plaintiff’s mother was a resident in the defendant nursing home. In January 2016, nursing home staff dropped the plaintiffs’ mother as they were transferring her from a bath chair to her bed, causing the woman to suffer a laceration on her leg. She died a few months later.

When someone is admitted into a Maryland nursing home, the nursing home will present the potential resident with pre-admission paperwork that must be completed before the home will accept the resident into its care. This paperwork will often contain an arbitration agreement by which the resident agrees to resolve any disputes that arise through binding arbitration, rather than filing a case in court.

Most nursing home residents are admitted to a Maryland nursing home because they are unable to care for themselves. Thus, the pre-admission paperwork is often filled out by loved ones who are helping their aging relative obtain the care they need. These family members may or may not have power of attorney over their loved one’s affairs. Even if a resident has executed a power of attorney in favor of a loved one, the exact wording of the document is crucial when determining whether the loved one has the ability to bind the resident to an arbitration agreement.

Recently, a court dismissed a nursing home’s request to compel a resident to resolve their case through arbitration. In that case, a man was admitted to the defendant nursing home. At the time of admission, the man was alert and aware of his surroundings. However, he was accompanied by his niece, who signed all nursing home pre-admission paperwork. Included in this paperwork was an agreement to arbitrate all claims. The resident had executed a power of attorney in favor of his niece. However, that document was only effective once the resident became mentally incompetent.

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 home residents in Maryland and across the country can be at great risk when left unattended, particularly if they have diminished mental capacity. In a recent case before a federal appeals court, a patient who had Alzheimer’s disease allegedly wandered from her room while unattended and died after she drank detergent she found in a kitchen cabinet.

The patient’s estate filed a wrongful death lawsuit against the nursing home, claiming the nursing home understaffed the home and failed to sufficiently secure the kitchen cabinet. The case went to trial and a jury found that the nursing home was liable for the patient’s death, awarding the patient’s estate $5.08 million. The nursing home agreed not to appeal but settled with the patient’s estate for $3.65 million, and the court set aside the judgment.

The nursing home later sued a contractor for contractual indemnification and breach of contract. The contractor provided kitchen and dining services at the nursing home, and the home alleged the contractor was liable for the patient’s death. The contractor claimed that the claims were barred by issue preclusion because the jury had already decided the nursing home was negligent.

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These days, many Maryland nursing home admission agreements often include arbitration contracts or clauses, which require certain claims against the nursing facility to be resolved through arbitration. However, under some circumstances, such agreements may not be enforceable. In one recent case, a plaintiff claimed that the arbitration agreement was not enforceable because the agreement was unconscionable.

In that case, a nursing home resident died in the facility and her husband filed a wrongful death claim against the nursing facility. The husband alleged that the nursing home’s staff negligently allowed his wife to fall multiple times, which ultimately led to her death. The facility filed a motion to compel arbitration based on an arbitration agreement that was signed between the resident and the facility. The husband claimed that the arbitration agreement was unconscionable and could not be enforced.

In that case, there was a signed arbitration agreement, which was separate from the admission agreement. The heading on the cover page read, “EXPLANATION OF BINDING ARBITRATION AGREEMENT,” and stated, “PLEASE READ CAREFULLY.” The cover page of the arbitration agreement stated that the agreement was “voluntary and not a condition for admission” and that the resident could consult with an attorney before signing the agreement. The agreement also stated that the resident could withdraw her consent within thirty days of signing. The resident could do this by writing “CANCELLED” on the agreement and mailing it to the facility. The resident and her husband signed the arbitration agreement and did not withdraw consent within 30 days.

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When a Maryland nursing home accepts a resident into their care, the nursing home assumes an affirmative duty to provide an acceptable level of care to the resident. This entails ensuring that all physical needs are met, including the administration of medication, allowing residents to use the restroom as often as needed, and ensuring that residents get the appropriate level of nutrition.

Given the tasks involved, running a nursing home is not an easy business, and many nursing homes operate on thin margins. Thus, nursing home management often are in a position in which they are trying to staff the home with the fewest number of employees possible. While this saves money, it also can prevent residents from obtaining the care necessary to live in a safe and secure environment.

When a nursing home fails to provide sufficient coverage to care for the needs of its residents, and a resident suffers harm as a result of this failure, that resident or their family may be able to obtain financial compensation for any injuries caused by the home’s negligence. Of course, a Maryland nursing home neglect plaintiff must be able to establish each element of their claim by introducing admissible evidence. Often, this consists of direct evidence, such as video recordings or witness testimony. However, nursing home neglect cases can also proceed on circumstantial evidence of abuse or neglect. This would include otherwise unexplainable bruises or bedsores.

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Earlier this month, an appellate court issued a written opinion in a personal injury lawsuit discussing the validity of an arbitration agreement. The court ultimately concluded that the arbitration agreement, which was signed by the plaintiff on behalf of his deceased father, was not enforceable against the plaintiff to preclude a wrongful death lawsuit against the defendant nursing home facility.

The case is important to Maryland nursing home litigants because, like the statute discussed in the case, Maryland’s wrongful death statute creates an independent claim that is not derivative of the rights of the deceased.

The Facts of the Case

The plaintiff’s father was a resident in the defendant nursing home. Prior to being admitted to the nursing home, the resident was required to sign a pre-admission contract containing an arbitration agreement. The resident, however, was unable to sign the form due to his physical condition. The form was stamped “unable to sign,” and the plaintiff signed the form on his father’s behalf. Underneath his signature, the plaintiff wrote “son.”

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While Maryland nursing homes all have a duty to provide a safe place for residents, nursing home management routinely makes decisions that put residents at risk. Last year, in the wake of Hurricane Irma, 12 people died in a nursing home in Hollywood, Florida. According to reports at the time, the nursing home’s management had failed to secure a back-up power source in the days leading up to Hurricane Irma’s arrival. When Hurricane Irma came in as strong as expected and knocked out power in the area, the nursing home residents were left in 90-degree heat with no air conditioning.

In all, 12 nursing home residents died, most from dehydration or heat exhaustion. A subsequent investigation revealed that the temperature in the nursing home exceeded 99 degrees in some areas.

In the aftermath of the tragedy, the State of Florida moved to revoke the nursing home’s license. Of course, the nursing home is contesting the revocation of its license. As a part of the process, an attorney for the nursing home recently deposed a lieutenant with the Hollywood Fire Department. According to a recent article, the lieutenant’s answers to many of the questions – including whether she saw other nursing home residents who seemed to be suffering from the heat – were “I don’t recall.”

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