Maryland Nursing Home Lawyer Blog

Arbitration Hearings in Maryland Nursing Home Cases

December 21, 2018 | Lebowitz & Mzhen

Maryland nursing home residents must consider whether their ability to sue a nursing home is limited by agreements that were signed at the time of their admission to the facility. This is because Maryland nursing home admission agreements often contain arbitration clauses, which may limit a party’s ability to bring a lawsuit in court.

Arbitration is a form of out-of-court resolution where an arbitrator, rather than a judge or jury, makes a final decision in the case. Many nursing homes routinely include arbitration agreements within their admission paperwork, as a way to avoid lengthy and costly litigation. In arbitration, the procedural rules are relaxed, and an arbitration decision is generally final, and cannot be appealed. Because of these factors, arbitration favors more sophisticated parties who frequently find themselves in court.

Resident Unable to Sue After Alleged Rape in Nursing Home

According to a recent news article, an 87-year-old nun said she was raped at night at her nursing home. She claimed that someone entered her room at night, pinned her down on the bed, and raped her.

Federal Agency Takes Steps to Counter Low Nursing Home Staffing Levels in Maryland and Nationwide

December 14, 2018 | Lebowitz & Mzhen

Study after study has shown that one of the root causes of Maryland nursing home abuse and neglect is understaffing. Federal regulations require that a Registered Nurse is on staff seven days a week for at least eight consecutive hours a day. And in general, the fewer qualified staff members a nursing home has, the more work each staff member must take on. Without a registered nurse on staff, the level of care a nursing home can provide is greatly limited. At some point, overworked employees face a reduced ability to perform the functions of their job with the patience and care that is required.

According to a recent industry news report, a few weeks ago the Center for Medicare and Medicaid Services (CMS) issued a new rule that will increase the agency’s oversight of nursing homes in an attempt to lower the number of homes that operate with reduced staffing levels. States have always been required to survey nursing home staffing levels. However, under the old rule, only 10% of those surveys had to be conducted during the weekend and off-peak hours. However, the new rule requires that state conduct 50% of surveys during weekend and off-peak times.

The new rule uses payroll-based journal data to identify the 20% of nursing homes in each state with the lowest level of staffing on the weekends and during off-peak hours. Once the 20% in each state is identified, the CMS will provide the names of the facilities to state agencies. Each state will then be responsible for following up with additional surveys. If a facility remains out of compliance, it will be sanctioned accordingly. Understaffing can also result in a nursing home receiving a low star-rating.

Nursing Home Residents Have the Right to Be Free from Abuse

December 7, 2018 | Lebowitz & Mzhen

Nursing home residents have the right to reside in a safe facility free from abuse of all kinds. Abuse can take different forms, including sexual abuse, physical abuse, neglect or isolation, financial abuse and exploitation, and emotional abuse. Under Maryland Family Law Article § 14-101, abuse is defined as “the sustaining of any physical injury by a vulnerable adult as a result of cruel or inhumane treatment or as a result of a malicious act by any person.”

Maryland nursing homes have a responsibility to keep residents safe by taking steps to prevent abuse. Nursing homes must develop and implement written policies and procedures that prohibit the abuse and neglect of their residents. Nursing homes also cannot employ individuals who have been found guilty of abusing, neglecting or mistreating residents, and nursing homes are required to check the state’s nurse aide registry. In addition, nursing homes are required to investigate and report all allegations of abuse within 24 hours after discovery of any incident. Reports from investigations must be reported to Maryland’s Office of Health Care Qualify within five working days of the alleged violation.

Signs of abuse can be wide-ranging, but may include missing property, insufficient funds in bank accounts, unsanitary living conditions, bedsores, fear of a certain person, broken bones, unexplained injuries, and a history of repeated injuries.

Veterans Reportedly “Routinely Receiving Substandard Care” in VA Nursing Home

November 29, 2018 | Lebowitz & Mzhen

Although most people would prefer not to have their loved ones move into a Maryland nursing home, there is often little choice in the matter. As a result, nursing homes have become commonplace in Maryland and across the country. When a family trusts a nursing home to care for an aging loved one they assume, at a minimum, that their loved ones will receive the appropriate care.

The Standard of Care in Nursing Homes

Nursing homes are required to provide a certain level of care to residents. This is called the “standard of care.” The applicable standard of care varies based on the particular jurisdiction, and is often based upon local, state, and federal laws and regulations. Generally, although a nursing home cannot guarantee the safety of its residents, a nursing home must exercise reasonable care so that residents do not suffer physical injury and unnecessary mental distress. The applicable standard depends on the resident’s condition, which has to be evaluated by the nursing home, and addressed in properly caring for the resident. That means that if a resident has special needs, the nursing home should provide appropriate treatment and supervision to meet the standard of care for that particular resident.

Veteran’s Administration Nursing Home Among the Nation’s Worst

An internal report from the Department of Veterans Affairs found that a Veterans Affairs nursing home in Brockton, Massachusetts had “blatant disregard” for veteran safety, according to one news source. The Department of Veterans Affairs (VA) began its investigation of the facility after a nurse brought her concerns to the VA’s attention. Residents at the VA nursing home in Brockton were almost three times more likely to develop bedsores than residents at private nursing homes, and were generally more likely to experience serious pain.

Supreme Court Hears Case Concerning Arbitration Provisions

November 21, 2018 | Lebowitz & Mzhen

Nursing home residents and their families often sign admission agreements when a resident enters a nursing home. These agreements frequently contain arbitration provisions, which can have a significant impact in a Maryland nursing home lawsuit.

The U.S. Supreme Court recently heard argument on a case concerning arbitration provisions. The issue before the Court was how courts should decide whether a claim is required to be resolved through arbitration. If two parties have signed a contract that includes an arbitration provision, a later dispute may arise on whether a particular dispute falls within the arbitration provision.

Disputing the Validity of Arbitration Provisions in Nursing Home Agreements

Arbitration provisions are increasingly common in nursing home agreements. If a nursing home resident or a family member signs a contract with an arbitration provision, there may still be a way to keep the case in court. An arbitration agreement can force a matter to be resolved in arbitration, which can have present serious drawbacks for plaintiffs. For one, the arbitrator’s decision is final, meaning that a plaintiff cannot appeal an adverse ruling. However, the arbitration provision itself is not always enforceable.

Federal Government Attempts to Combat Underreporting of Nursing Home Abuse and Neglect in Maryland and Nationwide

November 14, 2018 | Lebowitz & Mzhen

As the average lifespan in America continues to increase, more and more families will need to rely on Maryland nursing homes to provide care for their aging loved ones. Indeed, nursing homes offer a necessary service; however, reports have recently come to light that nursing home abuse and neglect are rampant. Perhaps more alarming are the results of a recent government study indicating that of all the cases of nursing home abuse requiring hospitalization, 28% went unreported until the resident arrived at the hospital.

Instances of nursing home abuse and neglect are underreported for several reasons. One reason is that many residents are embarrassed to report what happened to them, or fear that they will be seen as troublesome by family members. Another reason is that the residents who are victims of abuse or neglect are often not in a condition to articulate what they are experiencing, and in some cases, residents have no one to report the abuse or neglect to.

According to a recent industry news source, the Centers for Medicare & Medicaid Services proposed a new regulation that would impose significant monetary fines upon employees of skilled nursing facilities who fail to report abuse, neglect, or other crimes within a certain period. Not only would the new regulation require an employee to report abuse or neglect that was witnessed, but it would also require an employee to report a “reasonable suspicion” that abuse or neglect was occurring. The idea behind the newly proposed regulation would be to encourage employees in these facilities to speak up on behalf of the residents who are the victims of abuse or neglect.

Maryland Announces $2.2 Million Settlement with Nursing Homes for Involuntarily Discharging Patients

November 7, 2018 | Lebowitz & Mzhen

This past month, the state of Maryland announced a settlement due to the involuntary discharge of nursing home residents in violation of Maryland’s Patient’s Bill of Rights.

Medicare Recipients’ Rights and Involuntary Patient Transfer and Discharge

Maryland’s Patient’s Bill of Rights protects the rights of individuals in nursing homes. Under the Bill of Rights, Medicare recipients are entitled to certain rights, including having access to doctors, specialists and hospitals, being treated with respect and free from discrimination, receiving health care services in a language the patient can understand, and appealing certain decisions about health care payment, coverage of services, and prescription drug coverage.

The Bill of Rights explicitly provides certain safeguards to nursing home residents who are involuntarily discharged. Discharged patients are at high risk for mortality, and discharge is meant to be an option of last resort for nursing homes. HG § 19-345.2 provides specific procedures for providers to follow before discharging or transferring a resident. Those procedures include having a post-discharge care plan, medical assessments, and written documents from the resident’s attending physician. Providers also are required to provide residents with at least a 3-day supply of medications.

Court Rejects Nursing Home’s Demand for Arbitration in Recent Wrongful Death Case

October 26, 2018 | Lebowitz & Mzhen

Recently, a state appellate court issued an opinion in a wrongful death case discussing the validity of an arbitration contract signed by the plaintiff on behalf of her elderly father. Ultimately, the court concluded that because the plaintiff’s father lacked the mental capacity to sign the contract at the time it was executed, the plaintiff could not be bound by the arbitration agreement. The case is significant because it presents the important and developing issue arbitration clause enforceability, which frequently arises in Maryland nursing home neglect and abuse lawsuits.

The Facts of the Case

The plaintiff was the daughter of a man who died from injuries allegedly sustained while in the care of the defendant rehabilitation facility. According to the court’s opinion, the plaintiff’s father suffered from a history of mental health issues, including dementia. One day, the plaintiff’s father fell and was admitted to the hospital. After about ten days in the hospital, the man was discharged from the hospital and sent to the defendant rehabilitation facility.

Before being moved to the rehab facility, the plaintiff executed several documents in preparation for her father’s transfer. Included in these documents was an agreement to arbitrate any claims arising from the facility’s care of the plaintiff’s father. About two months later, the plaintiff’s father was found unresponsive at the rehab facility. He was transferred back to the hospital, where he then passed away.

Malpractice Claim Against Nurses Dismissed for Failure to Provide Individual Notice of Claim to Each Defendant

October 19, 2018 | Lebowitz & Mzhen

Legal claims against a Maryland nursing home generally fall into three categories: abuse, neglect, or medical malpractice. Medical malpractice claims arise in the nursing home setting when healthcare professionals in nursing homes provide medical care for the residents. In these cases, plaintiffs have to make sure to comply with the additional requirements for medical malpractice claims.

In a recent case against a nursing home, a resident’s daughter brought a negligence claim against the nursing home and several nurses after the resident fell and died as a result of her injuries. Shortly after the resident’s death, the daughter’s lawyer mailed the nursing home a letter stating that the nursing home and “its employees” were negligent and that their negligence caused the resident’s death. The plaintiff later filed a lawsuit against the nursing home and against several nurses at the nursing home. The nurses filed a motion to dismiss, arguing that the daughter did not comply with the state’s pre-suit requirements.

The issue before that state’s supreme court was whether the letter sent to the nursing home was sufficient pre-suit notice to the nurses named in the lawsuit. Under that state’s laws, a plaintiff must provide at least sixty days’ notice to the defendant before bringing a claim, notifying the defendant of the legal basis of the claim, the type of damages being sought, and the nature of the injuries suffered.

Nursing Home Attempts to Blame Contractor After Patient Dies from Drinking Detergent

October 12, 2018 | Lebowitz & Mzhen

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.