Maryland Nursing Home Lawyer Blog

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.

Nursing Home Neglect Can Lead to Even a Healthy Resident’s Death

March 30, 2018 | Lebowitz & Mzhen

When a Maryland nursing home accepts a resident into their care, the nursing home assumes an affirmative duty to provide an acceptable level of care to the resident. This entails ensuring that all physical needs are met, including the administration of medication, allowing residents to use the restroom as often as needed, and ensuring that residents get the appropriate level of nutrition.

Given the tasks involved, running a nursing home is not an easy business, and many nursing homes operate on thin margins. Thus, nursing home management often are in a position in which they are trying to staff the home with the fewest number of employees possible. While this saves money, it also can prevent residents from obtaining the care necessary to live in a safe and secure environment.

When a nursing home fails to provide sufficient coverage to care for the needs of its residents, and a resident suffers harm as a result of this failure, that resident or their family may be able to obtain financial compensation for any injuries caused by the home’s negligence. Of course, a Maryland nursing home neglect plaintiff must be able to establish each element of their claim by introducing admissible evidence. Often, this consists of direct evidence, such as video recordings or witness testimony. However, nursing home neglect cases can also proceed on circumstantial evidence of abuse or neglect. This would include otherwise unexplainable bruises or bedsores.

Video Evidence Is Catching More Abusive Caretakers in the Act

March 23, 2018 | Lebowitz & Mzhen

Maryland nursing homes have never enjoyed a sterling reputation for the care they provide to residents. While there are many quality facilities staffed with caring individuals, unfortunately, they seem to be in the minority. More often than not, nursing homes are operated with their for-profit motive placed above all else. This means staffing homes with as few employees as possible, among other things.

When nursing home management tries to cut corners by reducing the number of nurses, the chance increases that those nurses who are on duty will be overworked. And while there is never an excuse for abusing a patient, research has shown that overworked nursing home employees are more likely to commit abuse or neglect than those who feel their workload is manageable.

For years, Maryland nursing home abuse went largely unnoticed. Certainly it was occurring behind closed doors, but since residents rarely have contact with the outside world, reports were rarely made. And when reports were made, they were too often brushed aside by family members. However, with the increased availability of video cameras, more families are able to place hidden cameras in their loved ones’ rooms. In many cases, the footage from these cameras is admissible in a lawsuit against a nursing home or employee.

Court Invalidates Arbitration Agreement in Recent Nursing Home Lawsuit

March 11, 2018 | Lebowitz & Mzhen

Earlier this month, an appellate court issued a written opinion in a personal injury lawsuit discussing the validity of an arbitration agreement. The court ultimately concluded that the arbitration agreement, which was signed by the plaintiff on behalf of his deceased father, was not enforceable against the plaintiff to preclude a wrongful death lawsuit against the defendant nursing home facility.

The case is important to Maryland nursing home litigants because, like the statute discussed in the case, Maryland’s wrongful death statute creates an independent claim that is not derivative of the rights of the deceased.

The Facts of the Case

The plaintiff’s father was a resident in the defendant nursing home. Prior to being admitted to the nursing home, the resident was required to sign a pre-admission contract containing an arbitration agreement. The resident, however, was unable to sign the form due to his physical condition. The form was stamped “unable to sign,” and the plaintiff signed the form on his father’s behalf. Underneath his signature, the plaintiff wrote “son.”

Civil Lawsuits Versus Criminal Prosecutions in Nursing Home Abuse Cases

March 7, 2018 | Lebowitz & Mzhen

When a nursing home employee engages in abuse of a patient, two different types of lawsuits can follow. First, the local state government can opt to criminally prosecute the individual nursing home employee. If the employee is found guilty, they may face fines, probation, or even incarceration.

The other type of Maryland nursing home lawsuit is a civil case for damages. A civil lawsuit, also known as a personal injury lawsuit, is brought by the victim of the abuse or their family member, rather than by the local prosecuting authority. In addition, the focus of the case is not so much on the employee’s violation of the law, but instead on whether the employee violated a duty of care he owed to the nursing home resident. Importantly, even if a criminal lawsuit is not pursued, a nursing home resident or their family member may pursue a civil nursing home abuse lawsuit on their own.

If successful, a nursing home resident or their family may recover compensation for the injuries sustained by the abused resident. Depending on the circumstances surrounding the abuse, compensation may include amounts for past and future medical expenses, loss of enjoyment, decrease in quality of life, and any pain and suffering caused by the abuse. In some cases, punitive damages may also be appropriate.

Maryland Nursing Homes Can Be Held Liable for Employees’ Negligent and Abusive Acts

February 28, 2018 | Lebowitz & Mzhen

Under the doctrine of respondeat superior, or vicarious liability, an employer is generally responsible for the acts of its employees if they are acting in the scope of their employment. Therefore, if a Maryland nursing home staff member abuses a nursing home resident, the nursing home may be responsible for the employee’s actions as long as the staff member was acting within the scope of their employment.

“Nanny Cam” Leads to Arrests of Two Nursing Home Staff

A hidden camera recently led to the arrest of two Georgia women on elder abuse charges, according to one news source. An 89-year-old resident was living at a nursing home in Georgia when his family installed a “nanny cam” in his room to monitor his well-being because they were concerned about him. According to the news report, the video showed staff physically and mentally abusing the resident.

The resident was recovering from pneumonia and needed extra help with feeding and personal hygiene. According to police, two staff members in the room were frustrated with him and “were treating him pretty roughly.” The sheriff said that at one point, the resident was having a hard time keeping his dentures in while he was eating, and one of the staff members hit him to get the dentures back in. The staff also hit him in the face after he spit some food out of his mouth, cussed at him, and threatened to hit him. One of the staff members, who was 37 years old, was arrested on four counts of elder abuse, and the other staff member, who was 45 years old, was charged with one count of elder abuse.

Overuse of Antipsychotic Drugs in Nursing Homes Remains Problem, Putting Some Residents in Grave Danger

February 21, 2018 | Lebowitz & Mzhen

When a family places a loved one in a Maryland nursing home, the family leaves their loved one in the care of the home and its medical providers. Yet the medical providers may not always be doing what is best for the resident—and could even be putting the resident in danger.

If a resident passes away at a nursing home, one question to ask is which medications the resident was being given before the resident’s death. If the resident was given improper medication, the family may be able to bring a claim against the nursing home for the wrongful death of the resident.

Wrongful Death Claims in Maryland

A wrongful death claim is meant to compensate family members for the loss of their family member’s death due to the wrongful act of another person. Maryland’s Wrongful Death Act allows a wrongful death claim to be made “against a person whose wrongful act causes the death of another.” Normally, the claim must be made within three years of the family member’s death.

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.