Maryland Nursing Home Lawyer Blog

Ten Underperforming Maryland and Virginia Nursing Homes Put on the Federal Governments “Special Focus” List

July 25, 2019 | Lebowitz & Mzhen

The federal government is keenly aware of the fact that many Maryland nursing homes, as well as nursing homes across the country, routinely provide residents with an insufficient level of care. For this reason, each year, the federal government releases a report detailing the state of the country’s nursing homes. This June, Senators Casey (D-PA) and Toomey (R-PA) released a report entitled “Families’ and Residents’ Right to Know: Uncovering Poor Care in America’s Nursing Homes.”

The report begins by noting that aging citizens who live in nursing homes too often experience “outright neglect,” and that some residents are subjected to physical or sexual abuse. In an attempt to reduce the number of homes exposing residents to this neglect and abuse, the federal government implemented the Special Focus Facility (SFF) program. The SFF program seeks to identify the most problematic nursing homes across the country and increase supervision over these facilities. Once a facility is in the SFF program, it must be inspected no less than once every six months. Non-participants must be inspected once every 15 months.

The selection process for the SFF program focuses on those nursing homes that “persistently underperform in required inspections.” Under the SFF program, up to 88 nursing homes are selected, which amounts to less than .6 percent of all skilled care facilities in the United States. These facilities are referred to as “participants,” and the government releases the name of the facility to the public to assist potential residents in making important care decisions.

Is a Maryland Arbitration Agreement Valid If It’s Signed by a Family Member?

July 19, 2019 | Lebowitz & Mzhen

In some Maryland nursing home abuse and neglect cases, the determination as to whether a plaintiff’s claim is heard by an arbitrator or by a court can mean the difference between success and defeat. Most legal experts agree that nursing home arbitration contracts only benefit the nursing home. Thus, one of the most common preliminary matters in nursing home lawsuits is determining whether there is a binding arbitration clause.

As a general rule, arbitration clauses are binding on all parties if they are valid and properly executed. However, numerous issues can preclude the enforcement of an arbitration clause. One question that courts have recently been wrestling with is when a resident’s loved one (rather than the resident) signs the arbitration agreement. Recently a state appellate court decided that it would not review an appeal from a nursing home resident whose husband signed the agreement on her behalf.

According to the lower court’s opinion, the plaintiff was admitted to the defendant nursing home. At the time of admission, the plaintiff was accompanied by her husband, who signed the pre-admission paperwork on the plaintiff’s behalf. Among the documents the plaintiff’s husband signed was an agreement to arbitrate any claims arising from the plaintiff’s residence at the facility.

Why Maryland Nursing Home Residents Should Avoid Arbitration Whenever Possible

July 12, 2019 | Lebowitz & Mzhen

Arbitration clauses are very popular in the nursing home industry. Arbitration is a way to resolve a legal dispute without using the court system. Generally, arbitration is quicker and less expensive than a traditional lawsuit. At first glance, this may seem like a good alternative for many Maryland nursing home residents who want to bring a case against a negligent or abusive nursing home employee. However, arbitration typically favors the nursing home and should be avoided whenever possible.

Often, the paperwork presented to a prospective resident or the loved one in charge of their care contains an arbitration clause. These clauses essentially waive a resident’s right to pursue a case against the nursing home in court for any claim brought against the nursing home. However, nursing home residents are not provided anything waiving this right, and should carefully consider whether it is a right they want to waive.

Arbitration involves an independent arbitrator who hears the claim and renders a decision. The arbitrator that will hear the case is determined by the nursing home, and is typically included in the arbitration clause. Arbitration hearings often have strict time frames and relaxed rules of evidence, allowing savvy nursing homes who are familiar with the process and its rules to effectively defend against cases brought by residents. In a way, this gives nursing homes the “home-field advantage.”

Punitive Damages in Maryland Nursing Home Abuse and Neglect Cases

July 4, 2019 | Lebowitz & Mzhen

In general, the damages that are available to a Maryland personal injury plaintiff are designed to put the plaintiff back in the same position they were in before the defendant’s negligent actions impacted their life. Thus, most damages are referred to as “compensatory” damages, because they compensate a plaintiff for the injuries they suffered as a result of the defendant’s conduct. However, in some cases, punitive damages may also be appropriate.

Punitive damages differ from compensatory damages because the focus of a punitive damages award is not on the plaintiff, but on the defendant. Punitive damages are designed to punish the defendant for especially egregious behavior, and to deter future parties from engaging in similar behavior. For this reason, obtaining punitive damages requires proving additional facts. In Maryland, punitive damages cannot be obtained unless the plaintiff can show that the defendant acted with “actual malice.” A recent case illustrates how it can be difficult to obtain punitive damages.

In this case, the plaintiff was the estate of an older woman who passed away while living at the defendant nursing home. After the woman’s death, her estate (the plaintiff) filed a wrongful death claim against the nursing home, claiming that its negligence was the cause of woman’s death. Among other claims, the estate sought punitive damages based on staff members’ failure to care for the woman. The trial court preliminarily approved the claim for punitive damages, and the defendant immediately appealed.

Pregnancy Is an Obvious Sign of Sexual Abuse in Maryland Care Facilities

June 26, 2019 | Lebowitz & Mzhen

When someone is admitted to a Maryland nursing home or care facility, it is typically because they cannot perform the necessary daily tasks to lead a normal life. In many – but not all – cases, younger residents suffer from severe intellectual disabilities that render them incapable of providing consent for sexual intercourse. However, there have recently been reports of pregnancy among nursing home residents.

Last December, a nurse at an Arizona nursing home called the police in a panic when a resident unexpectedly gave birth. Apparently, this was the first time anyone at the nursing home knew that the woman, who was non-verbal due to a near-drowning accident, was pregnant. As it turns out, the pregnancy was the result of the resident being raped while at the nursing home.

One of the many questions this tragic situation raises is, how could the nursing home fail to notice that the resident was pregnant? The woman’s family wonders the same thing, and has filed a claim against the State of Arizona based on the state’s failure to provide sufficient oversight.

How Common is Maryland Nursing Home Abuse?

June 19, 2019 | Lebowitz & Mzhen

Nursing homes have long had a reputation for providing less-than-stellar care to residents. Indeed, every day there are new allegations of Maryland nursing home abuse or neglect. However, according to a recent government study, the total number of instances of nursing home abuse and neglect is actually under-reported.

CNN recently discussed a newly released report issued by the Department of Health and Human Services, concluding that one in five emergency room visits by nursing home patients is the result of abuse. The study analyzed over 37,000 emergency room admissions that were reported to the Center for Medicare and Medicaid (CMS). Also startling is the fact that “nursing homes frequently failed to report incidents of abuse to either CMS or local law enforcement, as required by federal regulators.”

The Office of the Inspector General for the Department of Health and Human Services told reporters that he fears instances of nursing home abuse are under-reported and that CMS can do a better job preventing abuse and neglect by using available data to target facilities with recurring reports of misconduct.

Arbitration Continues to Be a Hotly Contested Issue in Maryland Nursing Home Cases

June 12, 2019 | Lebowitz & Mzhen

Over the past few months, we have frequently covered cases and news stories discussing the issue of mandatory arbitration clauses that are contained in Maryland nursing home contracts. In Maryland and around the country, arbitration clauses continue to be one of the most contentious issues in many cases that are filed against nursing homes based on either the neglect or abuse of a resident. If enforceable, an arbitration clause can prevent a nursing home resident or their loved ones from pursuing a claim against the facility in court.

In a recent case issued by a state appellate court, a nursing home arbitration agreement was held not to be applicable against a resident’s son, although the resident’s son was the person who signed the form. According to the court’s opinion, the resident was admitted to the defendant nursing home in 2015. At the time, he was suffering from sepsis and chronic renal failure. The man’s son (the plaintiff) accompanied him to the nursing home and facilitated his admission.

The day after his father was admitted into the nursing home, the plaintiff was presented with a stack of documents to sign. Among these documents was one that, by signing, the plaintiff purported to consent to arbitration if the mediation process was not successful in resolving the case. All documents were signed.

Can a Maryland Nursing Home Be Liable for Resident-on-Resident Abuse?

June 4, 2019 | Lebowitz & Mzhen

One form of Maryland nursing home abuse that has recently begun to get a significant amount of attention is resident-on-resident abuse. The physical and mental conditions of residents at the time they are admitted into a nursing home vary. Because of this, some residents are better able to care for themselves, and they may seem to need less attention or supervision. Of course, there are also many residents who are incapable of self-care and require the near-constant assistance of nursing home staff members.

It is in this environment that resident-on-resident abuse is common. In fact, some experts estimate that one in five nursing home residents are victims of resident-on-resident abuse. This figure may be an underestimate because many victims of nursing home abuse are unable to report what they have endured, or choose not to report their abuse due to embarrassment or out of fear of not being believed.

Nursing homes have a duty to provide for the safety of residents, including protecting them from a threat of harm from another resident. When resident-on-resident abuse is reported, it must be taken seriously by nursing home administration. The alleged offender should immediately be separated from other residents, and the nursing home should contact the police. However, too often, nursing home staff members attempt to handle these matters internally, perhaps because they are skeptical of the accusations or they do not want the allegations to be made public. In such instances, it is not uncommon for the offending resident to continue to engage in abusive behavior. Depending on the situation, nursing homes may be liable for a resident’s injuries, even if the facility reports the abuse promptly.

U.S. Supreme Court Issues Opinion in Arbitration Case that May Impact Maryland Nursing Home Residents

May 28, 2019 | Lebowitz & Mzhen

The legal and ethical implications of mandatory arbitration provisions have been the subject of much discussion over the past few years. Recently, the U.S. Supreme Court issued an opinion in an arbitration case. While the case involves an employment arbitration agreement, the case is relevant to Maryland nursing home cases insofar as it illuminates the Court’s general position on arbitration agreements. Especially interesting is Justice Ginsburg’s dissent to the Court’s opinion.

The case involved a dispute between an employee and his employer, after the employer released the employee’s personal information in response to a phishing scam. Prior to his employment, the employee signed an arbitration agreement. Nowhere in the arbitration agreement was the possibility of a class-action discussed.

After the employee filed a lawsuit against his employer, intending to form a class-action lawsuit against the employer, the employer argued that the arbitration agreement compelled bilateral arbitration, or arbitration between a single employee and the employer.

The Importance of Following the Procedural Requirements of a Maryland Nursing Home Lawsuit

May 21, 2019 | Lebowitz & Mzhen

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.