Maryland Nursing Home Lawyer Blog

Study Reveals Dangers of Unlicensed Care Facilities

August 31, 2018 | Lebowitz & Mzhen

Nursing home residents in Maryland and throughout the country have the right to live in a safe environment, free from abuse and neglect. Claims against nursing homes can range from physical mistreatment and sexual abuse, to neglect, financial exploitation, and psychological abuse. Cases of Maryland nursing home abuse or neglect may not be obvious, as a resident may have difficulty communicating and may not even be aware of the neglect or abuse.

It is important for families to remain vigilant to identify cases of abuse and neglect, by looking out for warning signs, including poor hygiene and unexplained injuries. Although licensed care facilities are required to follow certain laws and regulations under federal and state law, some individuals are being under-cared for in unregulated, unlicensed homes, increasing the risk of abuse and neglect to those individuals, as one study recently found.

Abusive Unlicensed Care Homes Pose Serious Risks

A year-long study raised concerns about serious risks at unlicensed care homes in the United States, finding that “egregious crimes” are being committed against residents, according to one news source. RTI International, an independent, non-profit research firm, conducted the study for the Office of Disability, Aging, and Long-Term Care Policy and the Office of the Assistant Secretary for Planning and Evaluation of the U.S. Department of Health and Human Services.

Court Allows Case to Proceed Due to Potentially Invalid Nursing Home Arbitration Agreement

August 20, 2018 | Lebowitz & Mzhen

These days, nursing homes in Maryland and throughout the country often require nursing home residents to sign arbitration agreements upon admission. In a recent case before a state appellate court, the court allowed a case against a nursing home to proceed after the family disputed the validity of the arbitration agreement.

The Facts

The plaintiff sued a nursing home on behalf of her deceased mother after her mother died at the nursing home. The nursing home filed a motion to compel arbitration based on an arbitration agreement that was allegedly signed by the daughter. However, the daughter argued that she did not knowingly sign a mandatory arbitration form on her mother’s behalf when her mother was admitted to the nursing home in 2003.

The 75-year-old mother was admitted to the nursing home on two occasions earlier that year. The first time, the daughter was asked to sign several documents when her mother was admitted, including an arbitration agreement. The daughter refused to sign the arbitration agreement, but the mother was admitted anyways. In court, the nursing home presented another arbitration agreement dated later that month with the daughter’s signature. The daughter claimed that the signature was not authentic and that even if it was, it was obtained by misrepresentation.

Court Holds Verbal Consent to Sign Was Sufficient to Enforce Nursing Home Arbitration Agreement

August 14, 2018 | Lebowitz & Mzhen

If a resident of a Maryland nursing home has signed an arbitration agreement, they will be prevented from filing a case against the nursing home in court and must instead pursue their claim through the arbitration process. Thus, one of the earliest and most important considerations in a Maryland nursing home abuse or neglect case is whether there is a valid and enforceable arbitration agreement.Most nursing homes present residents with an arbitration agreement. Often, these agreements are buried deep in dense paragraphs, and they may not be fully understood by residents. Importantly, the fact that an arbitration agreement exists is not necessarily determinative of whether a resident will be forced to arbitrate their claim; courts will review arbitration clauses as well as the manner in which they were entered into before determining whether the agreement can be enforced.

One issue that frequently comes up in nursing home negligence and abuse cases in which an arbitration clause is present is whether the party that signed the contract had authority to do so. In a recent case decided by a federal appellate court, the court held that verbal consent given by a resident – rather than the typical document granting power of attorney – was acceptable to form a binding contract.

Prosecutors Ask Judge to Dismiss Case Against Neglectful Nurses

August 7, 2018 | Lebowitz & Mzhen

Abuse and neglect are serious problems in Maryland nursing homes, and in nursing homes across the country. Earlier this month, prosecutors who initially filed criminal charges against two nurses based on the allegedly negligent care they provided to residents asked the judge to dismiss the case. According to a local news report, despite the nurses’ claims that they had been taking care of a resident, video evidence showed that they did not step foot in her room for 17 hours. The video also showed that the nurses repeatedly left the elderly woman naked in her bed with the door wide open.Evidently, after the family discovered the nursing home neglect, they reported it to the authorities, and charges were initially filed. However, prosecutors recently asked the judge to dismiss the case in favor of allowing the state board of nursing to handle any disciplinary sanctions. The board would have the power to revoke the nurses’ licenses and place them on the registry of known abusers.

Although the prosecutors did not come right out and say it, what seems to be motivating their decision is the fact that in Iowa, where the abuse occurred, there is no statute allowing nursing home residents to install cameras to monitor staff. Thus, the prosecutors may be fearful that if they brought the case, the video would be inadmissible at trial, and this may create a bad precedent moving forward.

How Do Courts Handle Unenforceable Clauses in an Arbitration Agreement?

July 27, 2018 | Lebowitz & Mzhen

The determination of whether a nursing home abuse lawsuit is fought in court or through binding arbitration is often the very first fight in a long battle that many Maryland nursing home residents and their families face when trying to hold an abusive or neglectful nursing home accountable for their actions. Historically, nursing homes fare better when their claims are heard through arbitration. Thus, Maryland nursing homes do everything they can to get cases against them in front of an arbitrator.

Over the years, more and more nursing homes began to include arbitration agreements in their pre-admission paperwork. Often, these clauses are written in small print and included in the middle of large blocks of text. The idea being that the signing party will not take the time to thoroughly read through the entire document.

For a long time, courts were upholding these agreements based on the fact that they were signed. However, over the recent years, courts have been willing to intervene when arbitration agreements are either substantively unfair or were presented to the signing party in an unfair manner. However, arbitration contracts often contain a number of terms. And in some cases, a court will only take issue with a few of the terms in the overall agreement. In these cases, there is significant litigation over whether the whole agreement is invalid or whether the offending clause can be “severed” from the rest of the agreement. A recent case discussed this very issue.

Court Upholds Validity of Nursing Home Arbitration Contract in Recent Personal Injury Case

July 20, 2018 | Lebowitz & Mzhen

Recently, a state appellate court issued a written opinion in a personal injury case that illustrates a key issue that arises in many Maryland nursing home negligence cases. The case presented the court with the opportunity to discuss the validity of an arbitration clause contained in the nursing home’s pre-admission paperwork. Ultimately, the court concluded that the clause should be upheld and dismissed the plaintiff’s case, holding that the plaintiff was required to submit the case through arbitration.

The Facts of the Case

The plaintiff arranged for himself to stay at the defendant nursing home. The plaintiff was a resident of Nebraska, and the nursing home was a North Dakota corporation with its principal place of business in South Dakota.

Prior to his admission, the nursing home presented the plaintiff with a pre-admission contract. Contained in the contract was an arbitration clause. The clause contained a check-box next to the statement that the parties agree that “any legal controversy, dispute, disagreement or claim arising between the Parties” would be resolved through arbitration. The plaintiff checked the box marked “yes, I do.”

Court Upholds Nursing Home Arbitration Agreement Despite Failure to Print Language in Bold as Required

July 13, 2018 | Lebowitz & Mzhen

A state appellate court recently ruled on a case in which a nursing home’s arbitration agreement failed to strictly comply with the state’s requirements concerning arbitration agreements. In that case, when the patient had moved into the nursing home, she received an admissions packet with forms that included an arbitration agreement. The state’s Health Care Availability Act required that arbitration agreements contain a four-paragraph notice in a particular font size and bold-faced type. In the arbitration agreement on the patient’s form, the language was in the correct font size, but was not printed in bold typeface.

After the patient’s death, her family brought a wrongful death claim against the nursing home. The nursing home moved to compel arbitration based on the arbitration agreement. A trial court and a state appeals court found that the agreement was void because it failed to strictly comply with the Act’s requirements in that the required language was not printed in bold type.

On appeal to the state’s supreme court, however, the court found that the Act only required substantial compliance, not strict compliance. The court also concluded that the agreement in this case substantially complied with the requirements under the Act. Here, the nursing home had printed the relevant language in all capital letters, which the court found substantially satisfied the law’s requirements. The court held that the nursing home brought attention to the text in the same way that bold type would have. Therefore, the nursing home was able to force the family into arbitration to resolve the wrongful death claim against it.

Maryland Nursing Home Arbitration Clauses May Be Procedurally or Substantively Invalid

July 6, 2018 | Lebowitz & Mzhen

The right of unhindered access to the court system is one of the bedrock principles the founding fathers enshrined in the United States Constitution. At its essence, the concept stands for the proposition that anyone who has been harmed by another party should have equal access to a neutral forum that will hear the evidence presented and decide the case.

At the same time, parties generally have a right to freely structure business arrangements through the use of binding contracts. A common example of this is an arbitration clause that may be included in the pre-admission paperwork in a Maryland nursing home facility.

What Is Arbitration?

Arbitration is an alternative to the court system, in which an arbitrator – rather than a judge – will hear the evidence and come to a conclusion. Arbitration is less formal than the traditional court system, and may have slightly different rules of evidence and procedure. Generally speaking, parties that frequently engage in litigation prefer to arbitrate claims. This is because arbitration yields a faster result, is less expensive than, and more private than the traditional court system.

Holding a Maryland Nursing Home Responsible for Abuse or Neglect

June 28, 2018 | Lebowitz & Mzhen

Nursing homes are not necessarily known for their focus on patient safety. To the contrary, some Maryland nursing homes have lengthy records of fines and other citations for failing to comply with state requirements or, worse yet, instances of patient abuse or neglect. One may expect that it would be an easy task to find the allegations made against a nursing home prior to making the decision to place a loved on in their care; however, this is not necessarily the case.

Nursing homes take every effort to conceal allegations, especially those involving substantiated claims of neglect or abuse. One way nursing homes are able to do this is through settling such claims out of court with the stipulation that the other party will not discuss the terms of the negotiations or make the allegations public. However, nursing homes are not able to legally keep these records from state and federal agencies.

According to a news report, one North Carolina company that operates several nursing homes in the state was fined more than $567,000 over the past three years after hidden cameras revealed that staff members were abusing residents. The company owns 16 nursing homes, six of which were fined. The largest of the fines was over $234,000.

State’s Push for Stricter Reporting Requirements in Cases of Nursing Home Sexual Abuse

June 21, 2018 | Lebowitz & Mzhen

Despite the increase in attention that Maryland nursing home abuse and neglect have received over the past several years, instances of nursing home abuse continue to occur. Indeed, according to a local news report, one state’s lawmakers have begun a push for stricter reporting requirements for allegations of nursing home sexual abuse.

Evidently, lawmakers in Missouri have proposed House Bill 1635, which, if passed, would make reporting sexual abuse to law enforcement mandatory. Currently, state law only requires nursing homes to report the abuse to the state agencies involved in overseeing elder care.

The article discusses the tragic account of a 93-year-old nursing home resident, who was raped by a staff member and then died the following day. After the resident’s death, the nursing home reported the abuse to the state but not to the prosecuting authority. The family, believing the nursing home reported the incident to the police, did not report the abuse either.