Maryland Nursing Home Lawyer Blog

Sexual Abuse Among Nursing Home Residents Becoming an Increasingly Common Problem

May 5, 2017 | Lebowitz & Mzhen

Over the past decade, instances of resident-on-resident abuse in nursing homes have greatly increased. One of the most common forms of unwelcome resident-on-resident contact is sexual abuse. When a resident suffers sexual abuse while at a nursing home facility, various legal issues may arise.

Determining Who Is Responsible in Cases of Resident-on-Resident Sexual Abuse

There are two very important issues that must be determined early in a personal injury lawsuit alleging resident-on-resident sexual abuse. The first is whether the abuse was permitted to occur based on a lack of supervision at the nursing home. If so, the nursing home may be responsible under the legal theory of negligence. Generally speaking, nursing homes have a duty to care for and protect residents from certain harms, sexual abuse included. When a nursing home fails to provide a resident with adequate protection, the nursing home may be liable as a result.

The second important issue that must be resolved is whether a valid arbitration agreement has been signed by the resident or a member of the resident’s family. In many cases, nursing homes will claim that any case arising out of the care they provided to a resident must be settled through arbitration. Most often, arbitration clauses – which waive a party’s right to use the court system and require the case to be submitted to an arbitration panel – are in the nursing home pre-admission contract.

Resident-on-Resident Abuse in Maryland Nursing Homes

April 28, 2017 | Lebowitz & Mzhen

When most people hear the term “nursing home abuse,” images of a callous, bitter nursing home employee come to mind. However, over the past several years, a new kind of nursing home abuse has been on the rise: resident-on-resident abuse.

Most nursing homes care for a large number of patients, each with different medical needs. While some residents suffer from dementia or severe physical limitations and require constant supervision and care, other residents are in better health and are able to maintain some level of independence. This creates a situation in which one resident may bully, harm, or take advantage of another resident. Indeed, recent studies show that 90% of those who commit nursing home abuse are known to the resident.

A Nursing Home’s Duty to Protect Residents

When a nursing home takes in a patient, the home assumes a duty to that resident as well as the resident’s loved ones. Of course, the nursing home is responsible to provide a certain level of care to the resident. However, a nursing home’s duty to its patients does not end there. Nursing homes must also act to affirmatively protect residents in certain situations.

Jury Finds in Family’s Favor After Nursing Home Resident Dies from Toe Infection

April 21, 2017 | Lebowitz & Mzhen

Claims against nursing homes can arise in a variety of circumstances, including abuse, neglect, and failures to properly treat patients in their care. As a result, many of the claims against nursing homes and other long-term care facilities allege the facility was negligent in some way. As in any negligence claim, in a nursing home claim alleging negligence, a plaintiff must establish that the defendant owed a duty to the plaintiff, the defendant breached that duty, the breach caused the plaintiff’s injury, and the plaintiff sustained damages.

In nursing home claims, after a plaintiff proves that a nursing home owed a duty to the resident, the next issue is whether the defendant’s conduct fell below the standard of care. This is the standard that a defendant is expected to meet under the circumstances present in the particular situation. In some cases, a nursing home resident may die at a nursing home, but the home may not be at fault. Thus, in order to establish liability, a plaintiff has to show that the facility did not properly care for the resident, and this conduct led to the resident’s injuries. A recent case shows the type of evidence necessary to succeed in a nursing home negligence lawsuit.

Jury Awards Family $450,000 After Resident Dies from Infection

A jury recently found a rehabilitation center was negligent in its care of a blind, diabetic resident,
and it awarded the man’s family $450,000 in damages. According to one news source, the man, a 79-year-old retired tractor mechanic, died in November 2014, just a month after he was admitted to the center. The evidence presented at trial showed that the man was on dialysis and developed an infection in his big toe that turned gangrenous and that led to his right leg being amputated and ultimately to his death.

Overworked and Overstressed Nurses Are More Likely to Make Serious Mistakes

April 14, 2017 | Lebowitz & Mzhen

Nurses employed by private nursing homes often have very difficult jobs. Private nursing homes are for-profit businesses that are primarily motivated by the bottom line. This means that the lower that staffing costs are, the more money that nursing home management or investors can take home at the end of the day. This pressure can incentivize nursing home management to keep as few nurses on the clock as possible.

For a nurse who is just trying to do her job, fewer nurses on the floor means more work. Often, nurses will have to take on additional patients due to “staffing shortages.” Since nurses are human, the more stress placed upon them, the more likely that they are to make a mistake.

Of course, being busy and overstressed is not an excuse to make a mistake that can cost someone their life, but it does tend to explain why so many serious instances of neglect and serious medical errors occur in nursing home facilities across the country.

Validity of Nursing Home Arbitration Agreements Depends Heavily on Surrounding Facts

April 7, 2017 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of Georgia issued a written opinion in a nursing home negligence case that required the court to determine if an arbitration agreement in a pre-admission contract was binding against the deceased resident’s estate in a subsequent wrongful death lawsuit. The court determined that due to the derivative nature of wrongful death lawsuits, the deceased resident’s estate was bound by the agreement.

The Facts of the Case

The plaintiff in this case was the husband of a woman who had died while in the care of the defendant nursing home. Prior to the plaintiff’s wife’s admission to the nursing home, the plaintiff’s wife had executed a durable power of attorney in her husband’s favor. This allowed him to make legal decisions regarding his wife’s medical and financial decisions.

Before the plaintiff’s wife was admitted into the defendant nursing home, the plaintiff signed a pre-admission contract that contained an agreement to arbitrate any claims that may arise from the nursing home’s care of his wife. The plaintiff signed the agreement.

Nursing Home Arbitration Clauses Are Not Necessarily Binding, Depending on the Circumstances

March 31, 2017 | Lebowitz & Mzhen

It is common for anyone seeking admission into a nursing home to be presented with an arbitration agreement prior to being admitted. These arbitration clauses are often hidden in large paragraphs of small print and are easy to overlook. However, once signed, arbitration clauses often waive important rights and can have a major effect on a party’s ability to file a lawsuit against the nursing home, should anything go wrong in the future.

While a valid arbitration agreement may prevent a victim of nursing home abuse or neglect from using the court system to pursue a case against the at-fault nursing home, not all arbitration agreements are valid. In fact, a series of recent court decisions across the country has indicated courts’ willingness to declare arbitration agreements invalid when they are not signed by the appropriate party, too hidden, or entered into by an incompetent party.

A recent case out of Florida illustrates how courts may choose to invalidate an arbitration agreement when the person signing the contract is not the resident themselves.

Proposed Bill May Limit Availability of Damages for Nursing Home Abuse and Neglect Victims

March 24, 2017 | Lebowitz & Mzhen

Late last month, one lawmaker introduced the Protecting Access to Care Act, which, among other things, would limit certain damages awards to the victims of nursing home abuse and neglect. While the Act does not mention nursing home victims specifically, the broad changes proposed by the Act would, in effect, limit the availability of non-economic damages for nursing home abuse and neglect victims. It would also limit the amount of compensation nursing home abuse and neglect victims could receive for their pain and suffering.

The Act

According to one news source, a proponent of the Act claims that it will “throw blame out the window” and will allow for all involved parties to focus on how to prevent accidents rather than engage in post-accident litigation. The Act applies to anyone covered under Medicare, Medicaid, military health plans, and the Affordable Care Act, and caps damages against doctors, hospitals, and nursing homes in many situations. In addition, the Act would provide legal immunity to pharmaceutical companies whose products harm patients, so long as the product was FDA-approved.

Nursing Home Residents Are at Risk for Neglect and Abuse

March 17, 2017 | Lebowitz & Mzhen

A family’s worst nightmare may be that their loved one is being abused in a long-term care facility, but neglect is another form of mistreatment, and can also have devastating consequences. Neglect is the failure to care for a person in a manner that would avoid harm and pain, or the failure to react to a situation that may be harmful. Neglect can be intentional or unintentional. Examples of unintentional but neglectful care include: incorrect body positioning, lack of assistance eating and drinking, lack of bathing, and ignoring calls for help.

Abuse and neglect often are not obvious, but there may be signs that can hint at both. Some of these signs are dehydration, malnutrition, bruises, food poisoning, poor hygiene, bed sores, falls, and wandering. There are different statutes and regulations that protect the rights of senior citizens and nursing home residents.

Rights of Nursing Home Residents

Nursing home residents have the right to live in a safe environment and to be free from mistreatment. Mistreatment involves abuse, including physical, mental, verbal, and sexual abuse, neglect, or the failure to provide proper care to a resident, and exploitation, or the illegal or improper use of a resident’s money or belongings.

Sexual Assault in Nursing Homes Is Too Often Slow to Be Reported or Taken Seriously

March 10, 2017 | Lebowitz & Mzhen

Despite the fact that sexual assaults occur in nursing homes across the country on a routine basis, claims of sexual abuse are consistently too slow to be reported to authorities or investigated by nursing homes when claims are made by residents. According to an in-depth investigation conducted by CNN, most cases of sexual assault in nursing homes do not make it out of the nursing home. This is due in part to the fear of nursing home management that the disclosure of any sexual abuse may result in legal liability.

According to the report, more than 16,000 cases of sexual assault have been reported against nursing home employees since 2000. However, that figure is believed to be much lower than the actual rates of sexual abuse, due to the gap in reporting. It is believed that many victims of nursing home sexual abuse do not report the abuse for several reasons. For example, many nursing home residents fail to report because they are embarrassed of what happened to them. Sadly, those who do report their abuse are often met with skepticism by staff and sometimes even family members.

Another reason why the statistics of abuse may be lower than in reality is that many times nursing homes insist that any out-of-court settlement between a resident and the nursing home be kept confidential and be made without the nursing home needing to admit fault. Notwithstanding that reality, the article discovered over 1,000 cases in which nursing homes were cited for failing to prevent or report instances of sexual assault against a resident.

Nursing Homes Must Comply with Mandatory Discovery Requirements or Potentially Face Contempt Charges

February 28, 2017 | Lebowitz & Mzhen

In all personal injury cases, both the plaintiff and the defendant must exchange certain information and documents with each other that they plan to use at trial or that may be helpful for the other side in proving or defending against the case. This is called pre-trial discovery. Often, there is significant litigation surrounding the pre-trial discovery process because parties may not want to disclose everything in their possession for fear of helping their opponents.

In cases naming a nursing home, hospital, or medical professional as a defendant, the argument that a defendant often uses to withhold what may otherwise be mandatory discovery is that the request documents are “privileged” and need not be disclosed. For a document to be considered privileged, there must be some underlying statute or rule stating that is the case. A common example of privileged information is the communication between an attorney and his clients.

Illinois Nursing Home Is Ordered to Release Documents It Claimed Were Privileged

Earlier this month, an appellate court in Illinois issued an opinion that required a nursing home to release certain requested documents to a plaintiff in a medical malpractice lawsuit. Originally, the nursing home refused to release the documents, claiming that they were privileged under the state’s Medical Studies Act. The Medical Studies Act protects “records, reports, statements, notes or other data” that is related to the internal quality control measures of a nursing home. The idea behind the privilege is that the government does not want to discourage nursing homes from seeking to improve care by internally acknowledging that they could have done things differently in the past and potentially avoided an accident.