Articles Posted in Wrongful Death in Nursing Homes

In the event of the death of a resident at a Maryland nursing home, the resident’s family may be able to recover compensation through a Maryland wrongful death lawsuit.  However, determining fault in a nursing home abuse or neglect case is not always straightforward, and the assistance of a skilled personal injury lawyer can be an invaluable asset to families who are unfamiliar with the process.

Maryland’s Wrongful Death Act allows family members to file a civil claim against parties at fault for the decedent’s untimely death. A wrongful death claim is intended to compensate family members that have suffered a loss due to the loss of the decedent. It also permits the decedent’s family to hold wrongful actors responsible in the same way that the decedent could have if the decedent had lived.

A wrongful death claim is often filed by a spouse, parent, or child of the decedent. Such plaintiffs are considered “primary” plaintiffs under the Act. Only a primary plaintiff can file a wrongful death claim, if one exists. If the decedent does not have a living spouse, parent, or child, the claim can be filed by a “secondary” plaintiff. A secondary plaintiff is another individual who was related to the decedent by blood or by marriage and who was substantially dependent upon the decedent.

On several occasions, we have written about arbitration clauses in Maryland nursing home abuse and neglect cases. An arbitration clause is an agreement, typically within a nursing home resident’s contract or the papers required to sign when moving in, that says any disputes that arise will be handled through arbitration rather than through litigation. Arbitration proceedings are confidential and final, and the agreements mean that residents have signed away their right to sue the nursing home in court if they suffer abuse or neglect at their hands. Arbitration tends to be favored by nursing homes because it costs them less, the outcomes tend to be more favorable to the nursing home, and they can avoid bad publicity.

In a recent opinion, a state appellate court considered the validity of arbitration agreements even when the organization listed in the agreement as the arbitrator was no longer hearing cases. The case sheds light on how arbitration issues might play out in Maryland. According to the court’s written opinion, the plaintiff placed her husband in a nursing home and signed an arbitration agreement that all disputes would be solved by arbitration in accordance with procedures from the National Arbitration Forum. However, the National Arbitration Forum decided in 2009 that it would no longer get involved in consumer disputes. So, when the plaintiff’s husband died, and the plaintiff sued the nursing home for negligence and wrongful death, she argued that the contract language requiring arbitration was impossible to comply with, and thus invalid. The district court agreed with her, holding that the case could proceed through the court system as though no arbitration agreement was ever signed.

However, on appeal from the nursing home, the appellate court found that the agreement was enforceable despite the forum being unavailable to arbitrate the dispute, and that the forum-selection language in the agreement was incidental, not central, to the contract. As such, it found that the nursing home did not mean that only the National Arbitration Forum could arbitrate agreements. The plaintiff thus could not sue the nursing home in court, but rather had to go through arbitration with a different arbitrator.

Generally, when two parties sign an arbitration agreement, they must resolve their claims out of court through the arbitration process. Thus, by signing an arbitration agreement, the resident waives the right to sue the facility in court. Of course, the parties must voluntarily consent to arbitration through an agreement or otherwise. This means that in a Maryland nursing home case, the person bringing the claim must have signed, or be bound by, an arbitration agreement with the facility.

One state’s highest court recently ruled that a family member could not file a wrongful death claim against a nursing home where the resident had an enforceable arbitration agreement with the facility. In that case, a resident’s daughter had power of attorney for her mother. The daughter signed an arbitration agreement for her mother when her mother was admitted to the facility in 2013. Her mother developed bed sores and died after undergoing surgery for the sores. The daughter filed a wrongful death suit against the facility, but the facility argued the claim had to be resolved through arbitration.

The issue in the case was whether the arbitration agreement was enforceable against a family member filing a wrongful death claim. The court found that based on the state’s statute, the state’s interpretation of wrongful death claims, and the decisions of other state courts, the arbitration agreement was enforceable. The court ruled that the state’s wrongful death statute did not supersede the arbitration agreements signed by the residents, and that a resident’s agreement to arbitrate extends to their family members in a wrongful death claim.

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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