Maryland Nursing Home Lawyer Blog

Medical Malpractice Case Dismissed Due to Lack of Expert Report

February 14, 2018 | Lebowitz & Mzhen

Earlier this month, an appellate court in Mississippi issued a written opinion in a personal injury case that illustrates an important point for those considering filing a Maryland medical malpractice case. The issue presented in the case was whether the plaintiff should have had an expert prepare an affidavit in support of her claim, as is required under that state’s law.

The case is important to Maryland plaintiffs because Maryland law requires medical malpractice plaintiffs to obtain a similar affidavit from an expert in the field. As was the case here, a plaintiff’s failure to comply with this strict rule may result in the dismissal of an otherwise meritorious case.

The Facts of the Case

The plaintiff was the representative of a resident of the defendant nursing home who was admitted to the facility with a diagnosis of dementia. One day, a nurse checked on the resident, and all seemed to be fine. Then, just 20 minutes later, the same nurse returned, and the resident was sitting on the bathroom floor with a laceration on her head.

Resident-on-Resident Abuse Is Prevalent in Maryland Nursing Homes

February 7, 2018 | Lebowitz & Mzhen

Maryland nursing home residents, like all nursing home residents, deserve to live in a safe place. Although elder rights groups report that there is insufficient research on resident-on-resident abuse in nursing homes, they have found it is prevalent and warrants societal concern. Indeed, a recent study by the National Consumer Voice for Quality Long-Term Care found that around 20 percent of residents experienced resident-on-resident abuse. The study also found that the residents most likely to be involved in resident-on-resident abuse are often cognitively and physically impaired, and in many cases, they also have dementia.

In addition, elder abuse often goes unreported. According to the Office of Inspector General in the Department of Health and Human Services, over a quarter of serious cases of nursing home abuse are not reported to the police. This is true even though state and federal laws require that nursing home management report serious cases of abuse to the police.

Some believe that the rise in resident-on-resident abuse is due to an increase in nursing home residents suffering from dementia and the lack of staff equipped to handle those challenges. The Consumer Voice’s study found that resident-on-resident abuse often occurs as a single instance and then escalates because staff are not present to stop it.

The Distinction Between a Criminal Prosecution of a Nursing Home Employee and a Civil Personal Injury Lawsuit

January 26, 2018 | Lebowitz & Mzhen

When a loved one is placed in a Maryland nursing home, it is assumed that their basic physical and medical needs will be monitored and that they will be treated with dignity and respect. However, history has shown that nursing home employees, for whatever reason, too often engage in abusive or neglectful behavior. When authorities discover that nursing home abuse or neglect has occurred, those responsible can be held accountable for their actions in several ways.

Criminal Nursing Home Prosecutions

After allegations of abuse have been substantiated, criminal charges may be filed against a nursing home employee or administrator. Such cases are brought by the local prosecuting authority on behalf of the state and are designed to punish the wrongdoer for their actions. If they are found guilty of a criminal offense, the defendant can face fines, probation, and potentially incarceration.

While a criminal court may order some restitution to be paid to the victim, restitution amounts are normally limited in that they include only the amount of actual financial loss incurred by the victim. A criminal court will not award damages based on the victim’s pain and suffering.

A Follow-Up on the 12 Post-Irma Nursing Home Deaths

January 19, 2018 | Lebowitz & Mzhen

While Maryland nursing homes all have a duty to provide a safe place for residents, nursing home management routinely makes decisions that put residents at risk. Last year, in the wake of Hurricane Irma, 12 people died in a nursing home in Hollywood, Florida. According to reports at the time, the nursing home’s management had failed to secure a back-up power source in the days leading up to Hurricane Irma’s arrival. When Hurricane Irma came in as strong as expected and knocked out power in the area, the nursing home residents were left in 90-degree heat with no air conditioning.

In all, 12 nursing home residents died, most from dehydration or heat exhaustion. A subsequent investigation revealed that the temperature in the nursing home exceeded 99 degrees in some areas.

In the aftermath of the tragedy, the State of Florida moved to revoke the nursing home’s license. Of course, the nursing home is contesting the revocation of its license. As a part of the process, an attorney for the nursing home recently deposed a lieutenant with the Hollywood Fire Department. According to a recent article, the lieutenant’s answers to many of the questions – including whether she saw other nursing home residents who seemed to be suffering from the heat – were “I don’t recall.”

The Standard of Care in Nursing Home Cases in Maryland

January 12, 2018 | Lebowitz & Mzhen

Nursing homes are required to provide residents with a safe environment, free from abuse and neglect. However, whether a nursing facility violated the “standard of care” is often disputed in Maryland nursing home negligence cases.

Determining the standard of care is important in a nursing home case, particularly in cases alleging that a nursing home was negligent in caring for a resident. To show that a nursing facility was negligent, a plaintiff has to demonstrate that the defendant had a duty to protect the plaintiff, the defendant breached its duty, the plaintiff suffered an injury or loss, and the injury or loss was caused by the defendant’s breach. In order to demonstrate that a nursing home breached its duty, the plaintiff has to show that the home’s conduct failed to meet the applicable standard of care under the circumstances.

The standard of care may be set forth in a statute or regulation, which can serve as the standard by which the court can measure the nursing home’s conduct. For example, a nursing home’s violation of a law or regulation may allow a court to presume a nursing home was negligent. Some courts have also found that the federal Nursing Home Reform Law provides the standard of care for nursing homes. In many cases, an expert is required to explain how the facility’s conduct failed to meet the standard of care.

Sexual Assault Among Maryland Nursing Home Residents

January 5, 2018 | Lebowitz & Mzhen

Perhaps no decision is more difficult to make than deciding whether a parent or other elderly loved one needs the professional care of a Maryland nursing home. While all family members would like to be able to care for their aging loved ones in the comfort of their own homes, given the advanced medical needs of many elderly family members, this is not a realistic option.

When it comes time to consider sending a loved one to be treated by a Maryland nursing home, there are many considerations. Most important, of course, is the reputation of the nursing home for providing a safe and respectful environment. While nursing homes as a whole may not enjoy a good reputation for the level of care they provide to residents, there are professional and caring Maryland nursing homes, so families should not accept any level of abuse or neglect, and they should report instances of either immediately.

Over the past few years, sexual abuse among nursing home residents has seen a dramatic increase, not just between staff members and residents, but between the residents themselves. According to a recent news report, it may be that the instances of abuse are not necessarily more frequent than they used to be but that family members and authorities have become more adept at spotting the abuse. In part, this is due to the increase of cameras in nursing homes.

Potential Causes of Action in Maryland Nursing Home Cases

December 28, 2017 | Lebowitz & Mzhen

There are a number of potential causes of action that plaintiffs may be able to bring in Maryland nursing home cases. Some potential causes of action include negligence, battery, wrongful death, infliction of emotional distress, false imprisonment, and violation of consumer protection laws.

One of the most common causes of action is negligence. It can be brought against a long-term care facility if the facility is negligent in caring for the resident or if the home is negligent in training or supervising its staff. To establish a negligence cause of action, a plaintiff must show that the defendant had a duty to protect the plaintiff from injury, the defendant breached that duty, the plaintiff suffered an actual injury or loss, and the injury or loss proximately resulted from the defendant’s breach of duty.

Another potential cause of action is the infliction of emotional distress. Although it is a high bar, to prove a claim of intentional infliction of emotional distress, the conduct must be intentional or reckless, as well as extreme and outrageous. Additionally, the plaintiff must have suffered severe emotional distress, and there has to be a causal connection between the conduct and the emotional distress. Furthermore, in addition to these claims, facilities may be liable for failing to have adequate policies in place to prevent abuse or for failing to report allegations of abuse.

Elder Abuse in Maryland Nursing Homes

December 21, 2017 | Lebowitz & Mzhen

Maryland nursing homes have long been viewed with a skeptical eye when it comes to the level of care they provide to residents. For one, nursing home residents are in essence isolated from their loved ones, except for very specific times during a visit from family members. Additionally, family members can never really know what is happening to their loved one when they leave, especially if their loved one suffers from serious physical or mental health issues preventing them from effectively communicating with family members about their care.

That being said, nursing homes have a duty to provide all residents with a certain level of care that comports with the standards imposed by society in general. While the specifics of the duty owed to residents can vary, it always includes maintaining a safe environment that is free of abuse and neglect.

When a nursing home resident suffers from abuse or neglect, family members may be able to pursue a Maryland nursing home abuse or neglect lawsuit to obtain compensation for their loved one’s suffering. These lawsuits rely on general principles of negligence for the most part, but some nursing home cases do involve issues of medical malpractice, especially when the defendant is a licensed or certified nurse. In such cases, additional requirements may be placed upon a plaintiff filing a lawsuit against the nursing home. Anyone considering filing a Maryland nursing home abuse or neglect lawsuit should consult with a dedicated Maryland personal injury attorney prior to doing so.

Court Invalidates Nursing Home Arbitration Agreement in Recent Decision

December 14, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in California issued a written opinion in a personal injury case presenting an interesting issue that often arises in Maryland nursing home abuse and neglect cases. The case required the court to determine if an arbitration agreement was valid when it was signed by a resident’s family member who possessed a valid power of attorney at the time the document was executed. Ultimately, the court concluded that the decision of whether to admit someone to a nursing home constitutes a “health care decision,” which was not a right conferred by the power of attorney document.

The Facts of the Case

The plaintiff was the surviving loved one of a woman who died shortly after leaving the care of the defendant nursing home. Prior to the resident’s admission, the resident had executed two relevant documents. The first, executed in 2006, was a health-care power of attorney executed in favor of the plaintiff. The second, executed in 2010, was a personal-care power of attorney executed in favor of the plaintiff as well as the resident’s sister.

After the second document was executed, the resident’s sister placed the resident in the defendant nursing home. Prior to admitting the resident, the resident’s sister executed a pre-admission contract that contained an arbitration clause whereby both parties agreed to submit any claim that arose between the two to binding arbitration rather than the court system.

Nursing Home Settles Federal Lawsuit Stemming from the Inadequate Care Provided to Residents

December 7, 2017 | Lebowitz & Mzhen

When a Maryland nursing home accepts a resident into its care, the home takes on a responsibility to provide a certain level of care to the resident. Of course, this includes ensuring that the resident’s most basic physical and health-care needs are met, but it also requires that the home maintain the facility in a safe and clean manner. When nursing home management fails to live up to this standard, the home may be held liable through a Maryland nursing home negligence lawsuit.

Many nursing homes accept financial assistance from the federal government, through programs such as Medicare and Medicaid. By doing so, the nursing home also takes on an obligation to provide the type of care to residents that the government expects. A recent news article discusses a federal lawsuit that was recently settled after disturbing discoveries were made regarding the condition of the facilities.

The allegations arose from inspections that occurred back in 2008 and 2009. Inspectors noted that the home was infested with rats, mice, and cockroaches. One resident’s account was truly shocking. Evidently, the bedridden resident was complaining of leg pain to nursing home staff. When the staff member pulled back the blankets covering the resident’s lower body, a snake jumped out at her.