Maryland Nursing Home Lawyer Blog

Arbitration Agreements in Maryland Nursing Homes May Allow Facilities to Get Away with Neglect or Abuse During the COVID-19 Pandemic

July 21, 2020 | Lebowitz & Mzhen

The decision to place a loved one in a Maryland nursing home is rarely an easy one, and typically occurs when the individual is too elderly or sick to take care of themselves. Often, a family feels as if they have no choice but to place their loved ones in a nursing home to ensure that their loved one is taken care of and looked after. Families are often handed stacks of forms to sign—pages and pages—and will sign them right away, usually without reading them, wanting to ensure their loved one is secure in a safe space. However, a sneaky but potentially important term is often hidden in these forms: an arbitration agreement.

Arbitration agreements can force a resident and their family to resolve any disputes—including abuse and neglect claims—through arbitration, rather than through a lawsuit. By signing these forms, the family essentially waives their right to a jury trial.

These arbitration agreements are especially pernicious during the COVID-19 pandemic, as more and more individuals are being dropped off at nursing homes and rehabilitation centers in need of immediate assistance. Oftentimes, families will sign whatever forms are presented to them in an effort to make sure their loved ones are taken care of immediately. In addition, nursing homes are known hotspots for COVID-19 cases across the country, and COVID-19 related deaths surge within them, raising questions about the homes’ adequacy of care.

Maryland Nursing Homes Make Up Majority of State’s COVID-19 Deaths

July 14, 2020 | Lebowitz & Mzhen

Recent figures now show that nursing homes make up many of the country’s COVID-19 deaths. In fact, according to a recent report by the New York Times, 43 percent of coronavirus-related deaths in the United States are linked to nursing homes and long-term care facilities. In Maryland specifically, long-term care facilities make up a staggering 60 percent of the state’s COVID-19 deaths.

Throughout the country, COVID-19 deaths in nursing homes and long-term care facilities account for at least 54,000 deaths. So far, many large groups of coronavirus cases have occurred in nursing homes, prisons, and food processing facilities, where social distancing is difficult or impossible. And although there were more cases in prisons and food processing plants, the deadliest clusters have been mostly in nursing homes, where residents are particularly vulnerable because of their age and underlying health problems.

The report found that where large outbreaks occurred in nursing homes, 17 percent of people infected with COVID-19 died, compared to around a five percent death rate among COVID-19 patients in general. In three states, over 75 percent of all COVID-19 deaths are linked to nursing homes and long-term care facilities.

Can Parties Still Be Forced to Arbitrate After a Maryland Nursing Home Arbitration Agreement Expires?

July 7, 2020 | Lebowitz & Mzhen

Arbitration agreements are often the source of litigation in Maryland nursing home abuse and neglect lawsuits. Residents and their family members often sign these agreements without giving the terms of the agreement much thought. A state appellate court’s recent decision considered whether an agreement to arbitrate survived even if the remainder of the contract had expired.

According to the court’s opinion, a resident arrived at the defendant nursing home and was immediately given a residency agreement which said the agreement would continue indefinitely. However, the agreement also stated that either party could terminate the contract immediately upon written notice in the event of the resident’s death or of the resident’s relocation “due to [her] health.” An arbitration clause within the contract stated that all claims arising from the agreement or against the facility would be submitted to arbitration. The facility allegedly failed to administer thyroid medication to the resident for over a year, causing her to suffer health complications. The resident and her daughter (the plaintiffs) filed a lawsuit against the facility based on the facility’s alleged failure to administer the medication. The facility tried to have the case resolved in arbitration, relying on the arbitration clause in the agreement.

The plaintiffs argued that the contract expired in July 2017, when the resident relocated to a new unit and signed a new contract. The court held that even if the rest of the residency agreement terminated, the arbitration agreement did not. The court concluded that the arbitration clause gave the arbitrator the power to decide all disputes concerning the interpretation of the agreement, including when the agreement terminated. The appeals court also held that the plaintiffs failed to make an independent challenge to the arbitration agreement itself. Therefore, the plaintiffs were required to proceed with their claim through arbitration.

Could Maryland Nursing Homes Become Immune to Neglect Lawsuits?

June 25, 2020 | Lebowitz & Mzhen

For several years, we have written about Maryland nursing home abuse and neglect cases, which can have tragic consequences for residents and their families. Unfortunately, instead of the situation improving, some reports suggest that the COVID-19 pandemic could be making the situation worse, as thousands of residents are passing away in nursing homes, potentially due to negligent care. Any facility that has a large number of residents living in one community can be dangerous during the pandemic, and more than 37,000 residents in nursing homes have died since early March, raising concerns of inadequate protections or staffing.

Recently, ABC News reported in-depth on the issue. The article detailed the story of seven daughters who decided to move their father, a former corrections officer, into a Maryland nursing home this past February. Unfortunately, within three months of being in the home, their father died after testing positive for COVID-19. But before he died, he was in a severe condition, leading his daughters to believe that inadequate care at the nursing home may have contributed to or even caused his death. One daughter reported that, when her father originally went to the hospital (weeks before he died), the hospital staff told her that her father had lost 30 pounds and that he was so dehydrated “his blood was like mud.”

Typically, when someone is injured due to negligence or abuse in a Maryland nursing home, they have the ability to bring a personal injury lawsuit against the facility to recover for medical expenses, pain and suffering, and more. However, Maryland is one of the several states across the country that has laws in place to protect healthcare providers during a declared public health emergency. Now, during the COVID-19 pandemic and its severe effect within nursing homes, Congress is considering instituting similar protections for nursing homes. This could be a major barrier for plaintiffs who want to bring claims against nursing homes, making these suits an uphill battle. Supporters of the measures claim they protect nursing homes from frivolous claims against them, but critics point to how important it is that families affected by a nursing home’s negligence have an avenue of relief.

The Enforceability of Maryland Nursing Home Arbitration Agreements

June 19, 2020 | Lebowitz & Mzhen

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.

Filing a Lawsuit Against Maryland Nursing Home Staff Following Resident Abuse

June 11, 2020 | Lebowitz & Mzhen

When someone sends a family member to live in a Maryland nursing home, they trust that the facility and individual staff members will keep their loved one safe. However, incidents of assault in nursing homes contribute to a significant portion of claims of nursing home abuse in Maryland, and staff members who cause these harms should be held accountable for their actions. Maryland caregivers who work closely with seniors should never exploit their position or access to residents for personal reasons.

According to a recent news report, a former nursing assistant was sentenced to a year in prison after pleading guilty to charges related to abusing seniors in a nursing home. The investigation revealed that the staff member had inappropriately touched several residents in an assisted living center, and was facing multiple charges, including second-degree rape of a frail, elderly, or vulnerable individual, and two counts of fourth-degree assault with sexual motivation.

Although officials believe that there were likely other victims in the nursing home, the perpetrator was only charged with the assault of four seniors because the others had either passed away or were no longer able to provide statements, due to their age and condition. In addition to prison time, the staff member was fired from his job and had his nursing assistant license revoked. He will also serve 18 months of community custody, will be required to obtain a sexual deviancy evaluation, and is barred from having any contact from individuals in similar care facilities or nursing homes.

Filing a Lawsuit Against a Maryland Nursing Home Following an Incident of Resident-on-Resident Abuse

June 5, 2020 | Lebowitz & Mzhen

Claims of Maryland nursing home abuse often focus on abuse by staff members—but abuse by fellow residents occurs as well. Residents may be charged and convicted of crimes in some cases, but the facility may be liable for its role in the abuse as well.

Residents in Maryland nursing homes deserve to be treated with dignity and respect and to live in a safe environment. This means that nursing home facilities must have proper policies and procedures in place and adequate staffing to reasonably protect residents. Although a facility cannot ensure the safety of every one of its residents, some incidents are avoidable if proper measures are taken. A facility may be liable, for example, if a staff member failed to do routine checks or failed to protect other residents from a known violent resident.

A study conducted by the National Consumer Voice for Quality Long-Term Care found that almost twenty percent of residents in the study experienced resident-on-resident abuse. The study also found that resident-on-resident abuse often occurs and escalates specifically because staff members are absent. Residents involved in resident-on-resident abuse were more likely to be younger, less cognitively impaired, less physically impaired, display disturbing behaviors, live in a dementia special care unit, and white. The National Long-Term Care Ombudsman Resource Center recommends adopting a person-centered approach to prevent resident-to-resident abuse incidents, by identifying and documenting incidents and developing individual strategies.

The Required Health and Safety Standards in Maryland Nursing Homes

May 25, 2020 | Lebowitz & Mzhen

Nursing homes in Maryland are required to meet certain standards under federal and state regulations. For example, Maryland nursing homes must meet state laws and those facilities that accept Medicare and Medicaid patients must also meet federal standards. The Maryland Department of Health’s Long Term Care Unit ensures that state and federal standards are met by conduct site visits, surveys, and investigations.

A nursing home may be liable for injuries to a resident if the home fails to follow federal and state regulations or if it fails to adopt and maintain adequate policies and procedures. Many nursing homes have been criticized for their responses to coronavirus and failures to take adequate measures to protect residents by, for example, failing to quarantine sick residents or to have their staff wear protective equipment. The U.S. Centers for Medicare and Medicaid Services issued specific COVID-19 guidance in March.

If a Maryland nursing home resident becomes sick with COVID-19, the resident may be able to sue the facility for negligence or wrongful death if it failed to adequately protect residents or if it failed to properly care for the resident. A plaintiff in a Maryland nursing home case must show that the nursing home failed to meet its duty to provide adequate care for the resident based on the circumstances.

Maryland Nursing Homes Residents Suffering from COVID-19 at Alarming Rates

May 19, 2020 | Lebowitz & Mzhen

Maryland’s confirmed COVID-19 cases among residents in Maryland nursing homes and assisted-living facilities have continued to rise over the past weeks. As of May 16, 2020, there are now 5,329 confirmed resident cases and 984 confirmed resident deaths in the state. As cases grow, stories of neglect and substandard care in facilities have also continued.

In one nursing home in northern New Jersey, at least 53 residents have died from COVID-19. According to one news source, the nursing home, Andover Subacute and Rehabilitation Center II, had one of the largest outbreaks in the state, one of the hardest hit in the nation. Federal and state inspectors began investigating the 543-bed facility after police found 17 bodies piled in a morgue after receiving an anonymous tip that a corpse was stored in a shed. A federal inspection report was released detailing the state of the nursing home, which shows how the pandemic has overtaken nursing homes across the United States. The report’s findings include that one patient was found dead in bed after suffering from a high fever for days—after staff failed to notify a doctor of the patient’s fever. In addition, sick residents who were tested for coronavirus and waiting for the results were not quarantined away from healthy residents. Also, thermometers that employees used to take their temperatures at the beginning of each shift did not work. The report found that the nursing home put its residents in “immediate jeopardy” and the facility was fined $220,000.

The National Guard was called after the facility failed to adequately staff and protect staff and residents. The National Guard members were called in to clean and disinfect the facility. Residents had complained that clothing and bed sheets had not been washed. The facility is temporarily barred from accepting new patients and the facility will continue to accrue penalties until it addresses the issues in the report.

Maryland Nursing Homes Ask For Immunity from COVID-19 Lawsuits

May 13, 2020 | Lebowitz & Mzhen

Healthcare providers across the United States continue to grapple with challenges related to providing care to patients suffering from COVID-19, otherwise known as the novel coronavirus. Almost 60% of COVID-19 victims in Maryland are long-term care and nursing home residents. In response to the disproportionately high rate of infection in nursing homes, many states, including Maryland, have asked lawmakers to provide nursing facilities with immunity from lawsuits related to their care during the pandemic. Despite the inherent difficulties many residents and their families face pursuing lawsuits against negligent nursing homes, these facilities continue to push for additional protections against liability.

Even though the spread of disease and illness can become challenging to control, these entities have a responsibility to provide their residents and visitors with a safe environment and appropriate treatment. This includes ensuring that their staff is trained in proper hygiene and safety practices, providing staff and residents with protective gear, quickly diagnosing and identifying patients suffering from infectious diseases, and notifying visitors of any changes in visitation protocol. Despite these steps, outbreaks can still occur, and these facilities must have a plan in place to combat these instances. Infection control protocols include implementing stricter sanitation requirements, changing safety equipment requirements, and isolating high-risk or infected residents. The failure to respond to an outbreak effectively can result in deadly consequences for residents and staff.

Many families are beginning to file lawsuits against these facilities for their response to the COVID-19 outbreak. In response, many Maryland nursing home groups are asking the state to provide immunity based on the governor’s emergency declaration. A few states, including Maryland, protect providers during state and national emergencies. Nursing homes are anticipating that many lawsuits will include claims that the facilities did not have enough personal protective equipment (PPE) to protect their staff and residents. However, many residents and families are claiming that a lack of PPE is only one problem of many, and that clinicians and staff failed to diagnose and treat their loved ones quickly.