Maryland Nursing Home Lawyer Blog

Proposed Legislation Would Ban Arbitration Agreements in Nursing Home Contracts in Maryland and Elsewhere

January 6, 2020 | Lebowitz & Mzhen

Abuse and neglect are serious problems in Maryland nursing homes, and incidents can lead to physical and psychological injuries, and even premature death. Maryland law allows victims or their families to file lawsuits against negligent nursing homes when incidents occur, but many residents may be waiving that right without knowing it.

The use of mandatory arbitration agreements in nursing home contracts forces an injured resident to settle disputes with the nursing home through a private and confidential arbitration process, rather than in court. According to a recent news report, last month, two Congressional representatives introduced a bill that would ban nursing homes from requiring or asking residents to enter into mandatory arbitration agreements when moving into a home.

The use of arbitration by nursing homes has been a hotly debated topic. Advocates say that the process is speedier and less costly for abuse and neglect victims, while still allowing them a chance to receive the same financial compensation and other remedies available in court. Critics, on the other hand, claim that mandatory arbitration forces victims to give up their right to a day in court, allows negligent nursing homes to get away with abuse without hurting their reputation, and is unfairly biased against victims, especially since the nursing homes are repeat players who can form relationships with arbitrators.

Standards for Caring for Nursing Home Patients in Maryland

December 27, 2019 | Lebowitz & Mzhen

Nursing homes must meet certain standards in caring for their residents. The standards that must be met vary, depending on the jurisdiction and the local laws and regulations. Generally, the standards require that a nursing home must provide its residents with a safe environment and that it must exercise reasonable care in caring for its residents. In a Maryland nursing home abuse or neglect case, a plaintiff must show that the nursing home failed to meet its duty in properly caring for the resident under the circumstances. Courts may use different standards, such as national standards set forth for nursing home care and a nursing home’s internal policies.

Many nursing home cases involve neglect rather than intentional abuse. Examples of potential neglect include unsanitary living conditions and poor personal hygiene, which can cause sicknesses, especially to residents who are often already sick and elderly.

Almost 35,000 people die each year from drug-resistant infections, according to recent data from public health officials. The latest projection of deaths in the country is double the previous estimates, revealing the prevalence of drug-resistant infections, as one recent news source reported.

Are Residents Permitted to Install Cameras In Maryland Nursing Homes?

December 21, 2019 | Lebowitz & Mzhen

Nursing home abuse, while unfortunately common, is often difficult to catch or prove. Often, the victims are seriously disabled and vulnerable, and they may be unable to tell someone about the incident or even remember the incident at all. If they do manage to tell someone, their credibility may be undermined by the nursing home itself, denying that the incident happened and blaming the victim’s disability for causing them to lie or imagine things. Because of this, more and more nursing home residents and their families are installing cameras in nursing homes to monitor interactions between staff and the resident and look for instances of abuse.

Sometimes, these cameras can be the sole reason why a negligent nursing home is held responsible for the abuse that occurs in their facility. For example, a recent Minnesota nursing home recently discovered a video of a caregiver physically and verbally abusing a severely disabled resident. According to a local news report covering the incident, the staff member taunted the resident with derogatory and humiliating language, calling them vulgar names and asking them “do you think you have a hole in your brain?” The video also shows the caregiver tapping the resident’s face “in a slapping-type motion.” Without the video, the incident may never have been uncovered; the resident is partially paralyzed and has lost the ability to understand or express speech, and it is highly unlikely that they ever would have reported it themselves.

Fortunately for Maryland residents, the state’s laws allow a resident, or their family with the resident’s permission, to place hidden video cameras in the resident’s room. These video cameras can increase transparency in nursing homes and make it easier to catch incidents of abuse when they happen. They can also make it easier to pursue a resulting personal injury claim against the nursing home. Many personal injury cases against nursing homes likely would not have been won without video evidence, since the nursing home generally denies that any abuse occurred, and it can be difficult without hard evidence for plaintiffs to prove otherwise. Maryland is one of only a handful of states that allow video camera installation in nursing homes, and the nursing home industry actively fights against similar laws in other states.

Nursing Home Compare Website Adds Abuse Warning Icon, Upsetting Maryland Nursing Homes

December 16, 2019 | Lebowitz & Mzhen

More Maryland families are searching for nursing homes for their loved ones. Many utilize the Nursing Home Compare website run by the Centers for Medicare and Medicaid Services (CMS), which offers information on certified nursing homes across the country. The website allows families to compare how nursing homes rank for health inspections, staffing, resident care, and more. In October, CMS announced an addition to the website to better inform consumers about nursing home abuse: adding a new abuse warning icon – a red circle with an open palm – next to the names of nursing homes with a history of abuse or neglect.

The plan sparked immediate backlash and controversy, with advocates from the long-term care industry speaking out against the new icon. According to a new article covering the controversy, leaders from AMDA (the Society for Post-Acute and Long-Term Care Medicine) have called the new icon “misguided,” arguing that it will actually be counterproductive to patients and will negatively affect the motivation of staff members in nursing homes. A spokesperson from the American Health Association even called the red hand “dumb,” arguing that it is overly punitive and may improperly lead consumers away from quality nursing homes.

The government and supporters of the icon stand by their belief that the icon is beneficial to consumers. The CMS administrator wrote in October that the icon puts “critical information at consumers’ fingertips, empowering them and incentivizing nursing homes to compete on cost and quality.” Opponents, in response, argue that the icon could make consumers not even consider certain nursing homes, even if the abuse was long ago and resolved appropriately. Additionally, nursing homes without icons may be discouraged from reporting new incidents of abuse, out of fear of earning an icon on the website. Instead of an icon, opponents argue that the best way to end nursing home abuse is to encourage reporting of incidents.

Arbitration Agreements May Hinder Maryland Plaintiff’s Ability to Recover Against Negligent Nursing Homes

December 6, 2019 | Lebowitz & Mzhen

Although one hopes that Maryland nursing home abuse will never happen, state law understands that, when it inevitably does, the individuals affected have a right to bring a civil suit against the nursing home. However, many nursing homes may ask residents and their families to sign away that right by signing an arbitration agreement. Arbitration agreements, which vary depending on the nursing home, generally bind both the resident and the home to settling any disputes that arise through an arbitrator, rather than in a judicial forum.

With a valid arbitration agreement, when an individual is injured or suffers a premature death as the result of the nursing home’s negligence, the victim or their family must pursue their claim confidentially, through an arbitrator chosen by the facility. Arbitration, although it is quicker and potentially less burdensome than bringing a suit in court, may still be disadvantageous for plaintiffs. For example, nursing homes typically have the power to choose the arbitrator, who acts as the judge, and they may choose one they have worked with before. Additionally, there is no jury, and no appellate process.

Generally, signed arbitration agreements are valid and enforceable, and a nursing home can compel arbitration if a resident or their family ever file a suit against them in court. However, like all contracts, nursing home residents can challenge a contract that they signed without knowing what they were signing, claiming they never agreed to waive their right to sue. Recently, a state appellate court considered a case where this happened. According to the court’s written opinion, the plaintiff required 24-hour nursing care due to multiple disabilities. When he was admitted to the defendant nursing home, they had him sign 12 documents, including an arbitration agreement, but the facility’s employees never explained the arbitration agreement to him or gave him a copy to review.

Government Accountability Office Report Highlights Risk of Maryland Nursing Home Abuse

November 26, 2019 | Lebowitz & Mzhen

Across the country, approximately 1.4 million elderly or disabled individuals receive care in over 15,000 nursing homes. While many of these nursing homes take great care of their residents, a recent study from the U.S. Government and Accountability Office (GAO) finds that, unfortunately, nursing home abuse still occurs with some regularity. Because residents often have physical or mental disabilities and limitations, they are some of the most vulnerable to abuse. Maryland residents should be aware of potential issues of abuse when choosing a nursing home for themselves or a loved one.

The GAO’s report found that citations of nursing home abuse more than doubled between 2013 to 2017, with a particularly significant increase in severe cases of abuse. Importantly, the report also found gaps in the oversight of nursing homes. The Centers for Medicare & Medicaid oversee a program with state agencies to monitor nursing home safety, but their ability to do so may be limited for several reasons. First, state agencies who survey nursing home abuse typically do not note abuse and perpetrator time, meaning the Centers for Medicare & Medicaid may not have a complete picture of who is committing the abuse, or what type is most common. Second, when nursing homes report incidents, they typically lack vital information, which often delays state agencies’ investigations. And third, the GAO found gaps in the Centers for Medicare & Medicaid’s processes for referring incidents of nursing home abuse to law enforcement, which can slow down investigations and make it harder to end abuse in the homes overall. The GAO, finding these problems, also made recommendations to the Centers for Medicare and Medicaid on how they can fix them and improve the safety of nursing homes and the processes for dealing with abuse.

Cases of abuse in Maryland nursing homes, which can include medical neglect or physical, verbal, or sexual assault, can cause intense emotional distress and trauma for the victim and their families, not to mention medical bills for past and possibly continuing care. While the GAO’s report may hopefully lead to increased safety in Maryland nursing homes, there will, unfortunately, still be tragic instances of abuse. If tragedy does strike in a Maryland nursing home, state law allows the victim, or their family, to sue the home for negligence. The money won in a suit, while it can never undo the damage done, may help the recovery and healing process.

Sexual Assault Is a Growing Concern in Maryland Nursing Homes

November 18, 2019 | Lebowitz & Mzhen

Sexual assault and abuse incidents are always tragedies but can be of increasing concern when the victims are particularly vulnerable, weak, or unable to communicate what is happening to them. Unfortunately, this is the case for many victims of sexual abuse in Maryland nursing homes and hospitals. Although nursing homes and hospitals are supposed to take care of their residents and keep them safe, staff in these facilities may take advantage of residents sexually. In fact, a 2017 report found that more than 1,000 nursing homes across the country had been cited for failing to prevent sex abuse at their facilities, or for mishandling the reports.

The problem can, of course, affect the elderly who are spending their final days in a nursing home and require continual care. But a recent news report details that sexual abuse can occur to patients of all ages, including those who are young but significantly disabled or weakened. According to the report, there have been instances of sexual abuse in hospitals and nursing homes across the nation, with victims ranging in age. One 61-year-old woman, unable to speak from a tube in her throat, eventually communicated to her daughters that she had been abused by an EKG technician. Another victim, 29 years old and severely disabled, was found to have been sexually abused by one of her nurses.

Anytime an individual is sexually abused, Maryland law allows them to bring a civil suit both against the perpetrator and against a larger responsible party. When the abuse happens in a nursing home or a hospital, the victim or their loved ones can bring a civil suit against the institution for failing to take adequate steps to protect against sexual abuse. These institutions have a duty to take reasonable steps to ensure their residents are protected, but many still fail to handle complaints in a timely manner or investigate allegations. In order to prevail in a civil suit against one of these institutions, a victim or their loved one must prove to the court that the defendant had a duty to protect the victim, that they either did something or failed to do something that breached that duty, that their breach directly caused the victim’s injuries, and that the victim suffered actual injuries. While this process seems straightforward, the intricacies of the law can at times be confusing to victims and their families, particularly if they are still dealing with the aftermath of abuse. Potential plaintiffs are advised to consult with attorneys with experience in this area of law, who can take the case off their hands so they can focus on healing.

Government Website Warns Families of Potential Abuse or Neglect in Maryland Nursing Homes

November 12, 2019 | Lebowitz & Mzhen

When it comes time to place a loved one into a Maryland nursing home, families should be aware of the danger of abuse and neglect in nursing homes across the state. Choosing a nursing home is an incredibly important decision, and, unfortunately, failure to research homes carefully can result in placing a loved one in a substandard institution.

To make this process easier on families, Medicare.com offers information on every Medicaid and Medicare certified nursing home in Maryland. Maryland nursing homes must comply with state and federal regulations, and the Centers for Medicare and Medicaid Services make sure that facilities are following these standards. On their Nursing Home Compare website, families searching for a safe institution for their loved one can search for nursing homes by state, zip code, or city. For each certified nursing home, the website offers detailed information, including ratings ranging from zero to five stars on how the nursing home does on health inspections, taking care of their residents, staffing, and more. This information can be crucial in deciding between two local nursing homes, for example.

Importantly, this website will also notify you if there has been a recent incident of abuse or neglect in the nursing home where the resident was either injured or could have been injured. Unfortunately, nursing home abuse is far too common, and residents placed in substandard institutions are at risk of being neglected, abused verbally, physically, or sexually, or harmed from inferior safety protocols. When incidents such as these come to the attention of the Centers for Medicare and Medicaid Services, however, the nursing homes involved are “flagged”. For example, according to a recent report, five nursing homes in San Antonio, Texas were flagged earlier this month for several instances of abuse and neglect, alerting potential customers to these problems. While it is tragic that these instances occur, it is important that families considering placing their loved one in a nursing home research institutions carefully so they are aware of the potential problems.

Social Media and Maryland Nursing Home Abuse

November 5, 2019 | Lebowitz & Mzhen

Recently, a national news publication reported on a disturbing assisted living center abuse case. The case highlights issues that many Maryland nursing home abuse victims and their families experience.

According to the report, police investigated an assisted living facility after they received a call from a person who stated that they saw an egregious video of two women with dementia fighting posted on social media. The video shows a staff member pushing one resident while another resident is lying on the floor. The investigation revealed that, although the altercation did not amount to a “fight club,” as initially reported, the events were alarming and deviated from appropriate standards that nursing homes are expected to conform to. The employees permitted the residents to fight with each other while an employee physically assaulted another resident. Police conceded that the investigation was challenging because the victims are experiencing the symptoms of dementia and, therefore, cannot adequately articulate the events. The employees were terminated and are facing serious criminal charges.

In situations such as this, nursing homes and their employees often face civil charges in addition to criminal charges by residents and their families. In Maryland, nursing home abuse lawsuits are often steeped in allegations of abuse, negligence, malpractice, and premises liability. Nursing home abuse cases are typically the most disconcerting type of claim. These cases involve an intentional act or reckless disregard for the health and safety of the resident. Some examples of nursing home abuse are when a caretaker physically or sexually assaults a resident.

Maryland Nursing Home Abuse Victims Often Disclose Abuse to Loved Ones First

October 28, 2019 | Lebowitz & Mzhen

When a family member places their loved one in a Maryland nursing home, they are doing so to protect and care for their family member. However, unfortunately, each year thousands of nursing home residents report abuse or neglect in their institutions. There may even be more incidents than we are aware of, because many victims are unable to report their injuries, or are not believed when they do report. Unfortunately, there has been an increase in the rate of Maryland nursing home abuse. This is due in part to the aging population and an increase in life expectancy across the country.

Nursing home abuse can cause severe physical and psychological injury to the victims and their families. For instance, an 86-year-old woman was recently severely injured while staying in a nursing home. According to a local news report covering the incident, it is unknown exactly what happened to the resident, who suffered severe injuries to her face, including a broken nose, double fractures in her face, and stitches. Her son claims that his mother was assaulted, although the nursing home insists that she fell and there was no abuse.

Tragically, this is not the first time that the victim was injured from alleged nursing home abuse. Reportedly, she has told her son multiple times that her aides in the nursing home have been rough with her and hit her, causing noticeable bruising. Her son is heartbroken, having had to place his mother in the facility after she broke her hip and become totally disabled. An investigation is in progress.