Maryland Nursing Home Lawyer Blog

Important Arbitration Opinion May Impact the Rights of Maryland Nursing Home Residents and Their Families

January 22, 2019 | Lebowitz & Mzhen

One of the most controversial topics in Maryland nursing home lawsuits is the applicability and enforcement of arbitration agreements. An arbitration agreement is merely an agreement between parties to submit any disputes that may arise between the parties through arbitration, rather than through the court system.

What Is Arbitration?

Arbitration is a way to resolve claims between parties that does not involve a judge or a jury. Instead, the claim is presented to an arbitrator who hears evidence and arguments from both sides and decides the case.

Arbitration is different from traditional litigation for several reasons, including:

the procedural rules governing when a claim must be filed and how quickly the claim is heard are determined by the arbitrator;
the rules of evidence that are applied in an arbitration proceeding may be different from the rules that would apply in court;
for the most part, an arbitrator’s decision is final, meaning that it cannot be appealed by either party in the event of an unfavorable outcome; and
the decisions of an arbitrator are usually kept secret.

Sexual Assault in Maryland Nursing Homes

January 15, 2019 | Lebowitz & Mzhen

In a shocking case that sounds as an alarm to families of Maryland nursing home residents as well as those throughout the country, police are investigating after a nursing home resident in a vegetative state gave birth on December 29 in Arizona. According to a recent news report, the woman was 29 years old and had been in a vegetative state and coma for over a decade after she had almost drowned, according to a news source. Staff at the facility reportedly did not realize the patient was pregnant until she went into labor.

Evidently, the company’s CEO resigned after heading the company for 28 years and police opened an investigation into the circumstances surrounding the pregnancy. The facility specializes in caring for individuals with intellectual disabilities. According to the Medicare website, the facility received a “below average” rating from health inspectors in 2017. The Centers for Medicare & Medicaid Services also gave the facility’s quality of care a rating of “much below average.”

The state’s Department of Health Services stated that it would conduct an inspection of the facility after the incident. Another incident at the facility was reported in 2013. At that time, a male staff member made sexually explicit remarks to patients, according to the Arizona Department of Health Services. Phoenix police are now conducting an investigation and collecting DNA from all male staff members at the facility. The family’s attorney stated that the family is “outraged, traumatized, and in shock by the abuse and neglect of their daughter” at the facility. The attorney also said that the baby was “born into a loving family and will be well cared for.”

Low Pay May Be a Contributing Factor to the High Rate of Maryland Nursing Home Abuse and Neglect

January 8, 2019 | Lebowitz & Mzhen

Over the past several years, there has been a significant increase in the number of reported instances of Maryland nursing home abuse and neglect. In part, this is due to increased awareness of the problem, as social media has allowed for news of these disturbing events to disseminate more easily. However, experts still believe that the majority of nursing home abuse and neglect goes unreported.

Experts believe that there are several causes of nursing home abuse and neglect. Not surprisingly, most of the causes relate to the environment created by nursing home management rather than specific issues with individual nurses or employees. However, some nurses are better suited for the job. Often, this is due to the level of training or experience the nurse has obtained.

Studies have shown that low staffing levels are correlated with increased instances of abuse and neglect. Thus, it is generally agreed that the more stressful the work environment, the more likely employees are to “snap.” According to a recent article, Maryland and Virginia nurses are offered some of the lowest rates to provide in-home care to residents. Apparently, in-home nurses in Virginia and Maryland make only $20 to $35 per hour. This is about 30% lower than nearby states. As a result, qualified nurses are leaving Maryland and Virginia to pursue employment in states where they can earn a better living. Thus, residents are having a difficult time securing in-home nurses, especially during off-peak hours and on weekends.

Criminal Charges Are Not Necessary to Pursue a Claim Against a Maryland Nursing Home for Abuse or Neglect

December 28, 2018 | Lebowitz & Mzhen

In many situations where a Maryland nursing home employee is alleged to have neglected or abused a resident, the state will bring formal criminal charges against the resident. Other times, the state may not file charges if they believe there is enough evidence to prove that the staff member committed the offense beyond a reasonable doubt.

In a criminal proceeding, the victim may be required to testify in order to establish the elements of the criminal offense. However, even if the defendant is convicted, there is little that the court can do to provide any relief to the victims of the defendant’s assault.

Separate and apart from any criminal case, a victim of Maryland nursing home abuse can pursue a civil claim for compensation. If successful, a nursing home resident may be able to obtain award amounts for their past and future medical expenses as well as for any emotional damages that were sustained as a result of the abuse. In addition, unlike in a criminal case, the nursing home overseeing the abusive employee can often be named as a defendant, increasing the resident’s chances of being able to fully recover for any award that is issued.

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.