Maryland Nursing Home Lawyer Blog

Court Upholds Arbitration Contract Signed by Alternate Power-of-Attorney Designee

June 14, 2018 | Lebowitz & Mzhen

Earlier this month, a state appellate court issued a written opinion in a wrongful death case brought by a woman whose mother died a short time after being released from the defendant nursing home. The issue was whether the plaintiff, who was named as an alternate attorney-in-fact in her mother’s power of attorney document, had the authority to sign a binding arbitration contract on behalf of her mother. The court concluded that she did and thus held that the nursing home was entitled to arbitration.

The case presents an interesting and important issue for those seeking to hold a Maryland nursing home accountable for abuse or neglect. Matters involving the validity of arbitration clauses often arise in Maryland nursing home abuse lawsuits, and this case is instructive as to how courts may view various arguments.

The Facts of the Case

The plaintiff’s mother (Mother) executed a durable power of attorney (DPOA) document designating her son (Son) as the person who could make decisions on her behalf if she became incapacitated. The DPOA listed Mother’s daughter (the plaintiff) as an alternate.

State Attorneys General Call Nursing Home Reforms into Question and Call for a Reevaluation

June 7, 2018 | Lebowitz & Mzhen

Earlier last year, the current administration rolled back certain regulations that the Obama administration put into place regarding the issuance of Civil Money Penalties (CMPs) to nursing homes that were found to have provided inadequate care to residents. Essentially, the regulations allowed for the federal government to fine nursing homes that were not in compliance, including Maryland nursing homes.

Those in favor of the rollbacks claimed that the additional regulations took caregivers’ attention away from residents, requiring that they focus on meeting the regulatory framework set forth by the lawmakers. However, in reality, it seems as though the rollback of the previous regulations has merely allowed for nursing homes to act with impunity as it relates to the level of care they provide to residents.

According to a recent news article, 17 state attorneys general – including those in Washington, D.C. and Virginia – authored a letter to the Trump administration. The letter discusses the importance of senior care, noting that by 2060, the number of people dependent on skilled nursing facilities is expected to double. This means that one in three people will find themselves in a nursing home at some point in their life. Given the fact that about 35% of all nursing homes were cited for a violation of the quality of care being provided to residents, these figures are alarming to say the least.

Video Cameras Can Help Document Maryland Nursing Home Abuse and Neglect

May 28, 2018 | Lebowitz & Mzhen

Nursing homes have long been fairly scrutinized for the level of care that they provide to residents. Indeed, it is difficult to go more than a day or two without reading a headline discussing a family’s claims that a nursing home employee has abused their family member.

With the advent of affordable and low-profile video-recording technology, more families are considering placing a camera in their loved one’s room in hopes of being able to see how their loved one is being treated. In Maryland nursing homes, families can place cameras in a loved one’s room as long as both the resident as well as the nursing home are made aware and consent to the placement of the camera.

Under Vera’s Law, families can install a camera under certain circumstances. A few of the requirements are:

Recent Investigative Report Reveals High Rate of Nursing Home Abuse

May 21, 2018 | Lebowitz & Mzhen

The Office of the Inspector General (OIG) is a division of the U.S. Department of Health and Human Services (HHS) that is tasked with monitoring and preventing, among other things, nursing home abuse. Periodically, the OIG conducts audits of various HHS programs and their contractors.

Under federal law, nursing homes that are involved in Medicaid and Medicare programs will be audited by the federal government. These audits are intended to reveal any defects in their care or service and ensure that they are corrected. Nursing homes must meet certain standards of safety and care, and if they do not provide the auditing agency with a correction plan, they are at risk for being sanctioned and shut down.

In previous years, issues have arisen because some state agencies failed to ensure that nursing homes actually completed their correction plans. This is very alarming because these nursing facilities are entrusted with many emotionally and physically fragile individuals, who are often unable to advocate on their own behalf or report their abuse.

Proposed Laws Would Increase Oversight of Maryland Nursing Homes

May 14, 2018 | Lebowitz & Mzhen

Nursing home residents are one of society’s most vulnerable populations. Often, residents have a reduced ability to advocate for themselves due to their health issues, and they may have little contact with the outside world. Thus, Maryland nursing home abuse and neglect is not often reported, and when it is reported, nursing home administration too often ignore the complaints. Even when nursing home administration reports a complaint, the Maryland government is often slow to respond.

The State of Maryland Nursing Homes

According to a recent government study, Maryland ranks seventh-worst in the nation for on-time investigation of nursing home complaints. Perhaps because of that fact, Maryland nursing homes are notorious for the level of care they provide. In fact, reports of Maryland nursing home abuse rose 25% between 2016 and 2017. And with about 15% of nursing home residents and their families saying they would not recommend the nursing home that houses their family member, it seems that some instances of abuse and neglect are going unreported or uninvestigated. However, two pending bills hope to improve Maryland’s response time to complaints of nursing home abuse and neglect.

A recent news report discusses two proposed bills. Under proposed Senate Bill 386, the Maryland Department of Health would have 10 days to respond to a report of nursing home abuse or neglect that resulted in actual patient harm. If the report indicates that there is an immediate threat to a resident, the Department must initiate an investigation within 24 hours and begin the investigation within 48 hours. The proposed bill would also add 10 full-time employees to the state’s Office of Health Care Quality.

Nursing Home Employees Are More Likely to Abuse “Difficult” Residents

May 7, 2018 | Lebowitz & Mzhen

While all Maryland nursing homes have a duty to ensure the safety of their residents, the fact remains that instances of nursing home abuse and neglect have risen to record levels. The causes for the increase in the numbers of reported instances of abuse and neglect are believed to be related to both societal and business factors.

For one, more elderly Americans are in need of the services that a nursing home can provide. With the percentage of dual-income households on the rise, there are fewer families who have someone able to stay home and provide care to aging loved ones.

At the same time, the nursing home industry has gone through a consolidation over the past several decades, with several major players running a large number of the nursing homes across the state. This has led to an increased focus on cost-cutting and preserving the profits of the nursing home. Of course, one of the first places where management looks to save money is in the cost of labor. However, as the number of skilled nurses decreases, the nurses on duty are left with an unmanageable number of patients to assist.

Some Nursing Homes Are Overprescribing Medication to “Difficult” Residents

April 27, 2018 | Lebowitz & Mzhen

Maryland nursing homes have an unwavering duty to provide a safe and secure facility for their residents. However, over the decades since nursing homes have become more and more popular, it has been made clear that not all nursing homes take that responsibility as seriously as they should. Indeed, it seems that most nursing homes prioritize keeping expenses to a minimum over providing a safe home for their residents.

In a frightening new trend, nursing home staff members have begun to drug residents rather than provide them with the intensive care they need. According to a recent news report discussing one instance of over-drugging that occurred in a Texas nursing home, employees engaged in what has come to be known as “drug diversion,” whereby a nursing home employee takes the prescription medication from one patient and administers it to another patient for whom the medication has not been approved.

Aside from violating the basic principles of humanity, the practice of drug diversion presents clear risks to the safety of nursing home residents. For one, the medications that are most often the subject of over-drugging are powerful anti-psychotic medications that can cause serious adverse reactions with other medications. The report mentioned above explains that employees will often administer anti-psychotic drugs to residents whom they believe to be difficult.

Spotting Nursing Home Abuse and Neglect Before It Is Too Late

April 20, 2018 | Lebowitz & Mzhen

Over the past several decades, there has been a societal shift in the United States toward a household in which both parents work out of the home. Indeed, as of 2016, roughly two-thirds of all families were composed of two income earners. Most often, this means both parents are away from the home during the day.

Unlike in years past, today’s working families do not have the ability to care for their aging loved ones. This has correspondingly led to an increase in the number of elderly people being admitted to nursing homes. Currently, it is estimated that there are over 3.5 million nursing home residents. And while Maryland nursing homes present a good solution in theory, in reality, nursing homes are rarely “as advertised.”

Too often, nursing homes are understaffed with underqualified employees. This creates a situation in which abuse and neglect are rampant. Indeed, it is estimated that over 40% of nursing home residents will experience some form of abuse during their stay, and nearly 90% of nursing home residents report being neglected. Given the limited interaction between a nursing home resident and the outside world, it is believed that these figures may be an underestimation.

Court Finds Daycare Was Not Responsible for Criminal Acts of Employees

April 13, 2018 | Lebowitz & Mzhen

Recently, a state appellate court issued a written opinion in a personal injury case brought by the family of an infant who was beaten to death by a nanny. The case was filed against the nanny, as well as the daycare centers that previously employed the nanny. The court was tasked with determining whether the daycare centers that previously employed the nanny could be held liable for the nanny’s criminal conduct.

The case is important to Maryland personal injury victims, including victims of nursing home abuse and neglect, since it illustrates the outer limits of the liability of a facility – whether daycare or nursing home – for former employees.

The Facts of the Case

The plaintiffs found a nanny on a child-care website to watch their infant son. The plaintiffs ran a background check on the nanny, and after finding that there had been no reports, they hired the nanny. About a month after the nanny started watching the plaintiff’s son, they discovered that she had beaten the young boy badly. He later died from the injuries he sustained.

Court Refuses to Enforce Arbitration Agreement in Recent Nursing Home Case

April 6, 2018 | Lebowitz & Mzhen

Over the past few years, Maryland nursing home arbitration agreements have become very common. Essentially, an arbitration agreement is a contractual term between the resident and the nursing home in which the parties agree that, in the event a claim arises, neither party will file a case in the court system. Instead, the parties agree that they will submit the case to an arbitration panel, which will then issue a binding decision.

The issues with arbitration are now well known, although that was not always the case. At first blush, arbitration does not necessarily seem like a bad thing because it can result in the quicker resolution of claims and may reduce the costs associated with litigating a case. However, studies have shown that, on average, the rulings of arbitration panels tend to favor the company over the individual. One reason for this is that the company selects the specific company that will conduct the arbitration.

Given the importance of a person’s right to access the court system, courts require that arbitration agreements clearly show the parties’ intent to waive their rights before an arbitration agreement will be enforced. Additionally, courts must determine that the arbitration agreement is written in good faith and treats both sides fairly. Courts have also rejected arbitration agreements in cases involving the survivors of those who signed the original contract, finding that the survivor was not a party to the contract.