Maryland Nursing Home Lawyer Blog

Not All Nursing Home Arbitration Agreements Are Legally Binding

October 20, 2017 | Lebowitz & Mzhen

When someone is seeking admission into a Maryland nursing home, they will almost certainly be presented with a pre-admission contract. This contract goes over the rights and responsibilities of both the nursing home as well as the soon-to-be resident. In most nursing home pre-admission contracts, there is also an arbitration clause agreeing to forego the court system in lieu of arbitration in the event of a disagreement or lawsuit.

Arbitration clauses are generally enforced if they are entered into by the proper parties and are found to be within the constraints of the law. For example, some arbitration clauses have been invalidated because they are “buried” in the fine print of a lengthy contract with nothing indicating the significance of the rights the reader is giving up by signing the document.

Like all contracts, arbitration agreements must be validly entered into in order to be binding. This means that if a resident is found to have been incompetent, or is determined to have been forced to sign an agreement, the contract will not be enforced. A recent news article discusses a Kentucky case in which the court invalidated a nursing home arbitration contract because it was signed by the resident’s sister without the proper power of attorney.

Court Upholds Jury’s Decision to Award Punitive Damages in Nursing Home Case

October 13, 2017 | Lebowitz & Mzhen

In most cases alleging Maryland nursing home abuse or neglect, if successful, the plaintiff will receive compensation for the injuries sustained by their loved one. This normally includes the costs of medical expenses, and it may also include an amount for the emotional pain and suffering their loved one endured as a result of the abuse or neglect. In some rare cases, punitive damages may also be appropriate.

Most of the various types of damages available to a plaintiff in a Maryland personal injury case are focused on the plaintiff. However, the focus of punitive damages is on the especially egregious behavior of the defendant. Indeed, the purpose of punitive damages is to deter the very kind of behavior the defendant exhibited that led to the case being filed.

Punitive damages in Maryland are rare and require a showing of actual malice. This means that a plaintiff must show that the defendant possessed some kind of ill-will or spite. Thus, punitive damages are usually only appropriate when the defendant is found to have engaged in intentional wrongdoing, rather than merely negligent conduct. A recent case is an example of a situation in which punitive damages were found to be appropriate by a court.

Pre-Trial Discovery in Maryland Nursing Home Cases

October 6, 2017 | Lebowitz & Mzhen

When a Maryland nursing home neglect lawsuit is filed, the case will proceed through several stages before it is ready to be heard. One of the most important pre-trial stages is the discovery stage, at which the parties request and exchange relevant information about the case.

The discovery stage presents an important opportunity for a plaintiff to develop their case, since this is often when the plaintiff receives information to which they may not otherwise have access. In most cases, a plaintiff will request any and all evidence that they believe is in the defendant’s control that will be potentially helpful to their case. Similarly, a plaintiff can request any evidence that may be harmful to their case so that they can be properly prepared to handle this evidence when it is presented.

In some cases, defendants may attempt to limit a plaintiff’s access to discoverable material by claiming that the evidence is covered under some privilege. In such situations, the parties will litigate pre-trial discovery motions in front of the court, which will have the ultimate decision regarding which evidence must be exchanged. A recent case involving wrongful death claims against a nursing home illustrates how a defendant nursing home may cite a privilege in an attempt to prevent a plaintiff’s access to certain evidence.

A Maryland Nursing Home’s Duty to Its Residents

September 28, 2017 | Lebowitz & Mzhen

When a Maryland nursing home accepts a resident into its care, the nursing home takes on a responsibility to provide a certain level of care for the resident. In most cases, this duty requires that nursing home staff provide the resident with any care, including medical care, needed by the resident. However, in certain situations, a nursing home’s duty expands, depending on the circumstances.

A good example of when a nursing home’s duty can expand is detailed in a recent article discussing a tragic situation in which eight nursing home residents died in the wake of Hurricane Irma, due to a power failure in a nursing home. According to the recent report, despite ample notice of the storm’s severity and the potential for upcoming disaster, the nursing home did not secure any back-up power source.

Thus, when the nursing home lost power a day into the storm, residents were left without the electricity necessary to power medical devices as well as the home’s air conditioning system. By some accounts, temperatures reached up to 106 degrees. Several residents were able to be moved to a hospital that was across the street that had secured back-up generators in anticipation of power loss. However, eight residents died as a result of the power outage in the nursing home.

Nursing Home Abuse Frequently Goes Unreported, According to Recent Government Report

September 21, 2017 | Lebowitz & Mzhen

The residents of Maryland nursing homes are a vulnerable population. While most nursing home residents have family somewhere in the state, the reality is that family cannot always be present to witness how staff is treating their loved one. On top of that, many residents suffer from some kind of mental illness or incapacitation that can affect their ability to accurately and credibly relay information about the way they are being treated. Given this landscape, it does not require much of an imagination to see why nursing home abuse is underreported.

Under the law, any instances of abuse or neglect of a Medicare beneficiary must be reported to the authorities. However, according to a recent report, a newly released government study issued by the Department of Health and Human Services found approximately 130 instances of unreported abuse of Medicare beneficiaries, dating back to 2015.

The abuse discussed in the report is extremely serious, including rape, seduction, sexual abuse, physical abuse, neglect, abandonment, maltreatment, and sadism. The article details the abuse sustained by an elderly woman that was documented not in nursing home records but in the woman’s medical records after she was admitted into the emergency room. Evidently, a nursing aide entered the woman’s room to find a male nurse on top of the elderly woman, grabbing her breasts and ejaculating on her.

Nursing Home Residents’ Right to Be Free from All Forms of Abuse

September 14, 2017 | Lebowitz & Mzhen

Maryland nursing home residents have the right to live in a safe environment, free from mistreatment. Abuse against residents can take many forms, including physical abuse, financial exploitation, sexual abuse, neglect, and psychological abuse. A nursing home is responsible for keeping its residents safe and free from abuse. Under federal regulations, a nursing home is required to have policies and procedures in place to prohibit abuse, neglect, and exploitation, to investigate and report all allegations of abuse, and to protect residents from mistreatment.

Different types of claims can be filed against nursing homes that fail to keep residents safe or when employees are responsible for abuse. For example, a nursing home may be liable in negligence and medical malpractice claims, as well as claims involving intentional abuse. In addition to being responsible for its staff members’ actions, a nursing home may also be responsible for failing to have adequate policies in place to prevent abuse and to report allegations of abuse.

Social Media Abuse Becoming More Common in Nursing Homes

According to one news source, a new form of abuse is become increasingly common across nursing homes. What is being called “social media abuse” involves staff members taking inappropriate videos or photos of patients in their care and posting them on social media. One news outlet that has been tracking incidents of social media abuse in recent years has documented 65 cases, but it believes this is only a small portion of these posts. Resident advocates generally believe nursing home abuse and neglect is underreported because many residents cannot report abuse due to their age or developmental impairments.

Proving Abuse or Neglect in Maryland Nursing Home Cases

September 7, 2017 | Lebowitz & Mzhen

Maryland nursing home plaintiffs must prove that the nursing home staff or management was somehow negligent or involved in some type of wrongdoing before they are able to recover compensation for their loved one’s injuries through a Maryland nursing home case. However, this can be difficult in some cases. For example, residents often have mental incapacities that prevent or restrict them from reporting or testifying about abuse, and it can be hard to uncover evidence corroborating the abuse. That being said, there are a number of ways in which abuse can be corroborated.

For example, a facility may have resident records that make reference to an incident. In fact, federal law requires that nursing facilities maintain clinical records for all residents, and the records must be kept for at least five years. A facility’s failure to keep records may be used against the facility in court. Another potential source of information is other nursing home records apart from the resident’s records, such as employee schedules or training manuals that show whether a facility had adequate staff, training, and procedures in place at the time of the incident.

A resident’s statements about the incidents to others may also be admissible in some situations. Other residents or guests may have observed incidents or other issues within the facility. Expert witnesses can also testify about the facility’s training and procedures or a resident’s injuries, for example. Sometimes, there is video inside the facility or photographs that were taken after the incident.

Nursing Home Resident’s Claim Sent to Arbitration After Signing Contract Ten Days Before Her Death

August 28, 2017 | Lebowitz & Mzhen

One issue that often arises in Maryland nursing home cases is the effect of an arbitration agreement on a resident’s claim. In a recent case, one state’s appeals court considered whether an arbitration agreement was enforceable even though the resident passed away before the rescission period had passed.

In that case, an elderly woman had been a nursing home resident in a 24-hour nursing facility. After her death, the woman’s family filed a lawsuit against the nursing home facility, claiming elder abuse, negligence, wrongful death, and violations of the Patient’s Bill of Rights under state law. The nursing home argued that the case had to be resolved through arbitration because the resident had executed two arbitration agreements with the facility.

The arbitration agreements had language that was required by the state, which mandated that there be a 30-day “cooling off” period. During the cooling off period, either the nursing home or the resident could decide to rescind the agreement. The resident died 10 days after the woman signed the agreements, before the 30-day period had passed. The woman’s family argued that the agreements were not valid because the woman died before the expiration of the 30-day rescission period had ended.

Investigation Reveals Maggot Infestation in Resident’s Tracheostomy Due to Facility’s Neglect

August 21, 2017 | Lebowitz & Mzhen

Nursing homes and other long-term care facilities are responsible for caring for their residents and providing them with a safe environment, free from mistreatment. Abuse and neglect can often be difficult to detect, particularly since many residents in long-term care facilities are unable to report their experiences for a number of reasons. Maryland nursing home abuse may be more obvious to an outsider, but neglect can be more difficult because it is often unclear what the cause of a resident’s condition is. Neglect is a failure to care for a person in a manner that would avoid harm and pain, or a failure to react to a situation that may be harmful, and it can be intentional or unintentional.

One news article recently exposed the dire conditions facing one nursing home resident in upstate New York. According to the article, a resident at a group home for the severely disabled was found with maggots in his throat. Ever since the resident was in a car accident 26 years ago, he had been unable to walk, speak, or breathe without the help of a ventilator. After the maggots were found in the 41-year-old resident’s throat last summer, he was sent to the emergency room and treated. Apparently, this was not an isolated incident, since the resident had to make several trips to the hospital.

The State conducted an investigation of the incident and found that the resident had been neglected by caretakers. The investigation determined that the maggots in the resident’s throat resulted from the neglect by his caretakers. The staff members were supposed to keep his tracheostomy clean, but for several days, they neglected to do so. The investigation did not uncover which employees were at fault—so no employee was punished, and the investigation suggested instead that the home “consider” brushing up on training on the care of tracheostomies.

It May Soon Be More Difficult to File Claims of Nursing Home Abuse and Neglect

August 14, 2017 | Lebowitz & Mzhen

Placing a loved one in the care of a Maryland nursing home is never an easy choice. While nursing homes are not known for providing residents with a stellar level of care, in some cases they are necessary when families are unable to care for their loved ones on their own.

Unfortunately, the instances of Maryland nursing home abuse and neglect have recently been on the rise over the past several years. While the law allows for families of abused or neglected nursing home residents to seek compensation for their loved one’s injuries in some cases, the ability of family members to pursue these cases may be limited if the current administration reverses a rule implemented last year.

Arbitration Clauses and Nursing Home Litigation

Before a resident is admitted into a nursing home, a family member must sign a pre-admission form. Hidden among other clauses in these forms is often an arbitration clause, which prevents the family of the resident from filing any case against the nursing home in a court of law. Instead, the clause requires the family to pursue any claim through binding arbitration.