Maryland Nursing Home Lawyer Blog

The Ugly Face of Nursing Home Neglect

May 6, 2016 | Lebowitz & Mzhen

Nursing homes that care for the elderly have an affirmative duty to provide for the basic needs of the residents for whom the home is charged with caring. This duty goes beyond a moral one, and it is actually legally imposed and enforceable by the courts. In fact, if a nursing home resident suffers any physical injury or psychological torment, the nursing home can be held legally responsible. Injured residents and their families may be entitled to substantial compensation based on the neglectful or abusive tendencies of nursing home staff.

When the term nursing home neglect is thrown around, most imagine a busy nurse failing to attend to every need of their patients. Perhaps the nurse leaves a soiled diaper on a resident for too long, or delivers a meal later than desired. However, the truth about nursing home abuse is much more terrifying.

A Horrific Example of Nursing Home Neglect

Earlier last month, eight employees of an elderly care facility not far from Manchester, England were charged with the neglect of a patient. According to one local news source covering the disturbing story, the eight charged included the owner of the facility as well as the person responsible for keeping the man’s room clean.

One State Considers Banning Anonymous Abuse Complaints in Nursing Homes

April 28, 2016 | Lebowitz & Mzhen

Nursing home abuse is a tragic phenomenon, and everything should be done to curb it. Whether it be an overworked nurse who snaps at a difficult resident, or an angry employee who takes out their own aggression on those who cannot fight back, there is no excuse for engaging in nursing home abuse. However, the sad reality is that nursing home abuse is grossly underreported, with many residents afraid to report the abuse of those who are responsible for their daily care out of fear of reprisal.

Despite that fact, one state is considering a bill that would eliminate a person’s ability to anonymously report nursing home abuse. According to an article by U.S. News and World Report, Illinois legislators are considering a bill that would require each complaint of nursing home abuse to be accompanied by the reporter’s name. If the person calling does not want to provide their name, the report will not be filed.

Of course, doing away with anonymous reporting will limit the number of complaints of abuse, which is why the nursing home industry is in favor of the bill. In fact, about 20% of all abuse allegations currently reported are done so through anonymous calls. While the bill’s sponsor claims that the names of reporters would be held confidential, the mere fact that callers are require to disclose their identity will likely result in fewer calls.

Appellate Court Reverses Lower Court’s Dismissal of Plaintiff’s Elder Abuse Case, Allowing the Case to Move Forward

April 21, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in California issued an opinion in a case brought by the family of a man who died while in the care of a hospital, holding that the lower court’s dismissal of the complaint was in error. In the case, Fenimore v. Regents of the University of California, the court determined that the plaintiffs made sufficient allegations to survive the pre-trial dismissal stage, and the lower court erred when it dismissed the plaintiffs’ elder abuse claims.

Pre-Trial Dismissal Is Rarely Appropriate

In many personal injury cases, the defendant will file a pre-trial motion for summary judgment, asking the court to dismiss the case because the plaintiff’s case is insufficient as a matter of law. These motions, if granted, will result in the dismissal of the plaintiff’s case, and the plaintiff will be prevented from recovery. However, these motions are rarely successful, given the standard with which the court must consider them.

Summary judgment motions must consider the evidence in the light most favorable to the non-moving party. In the case of a motion filed by the defendant, this means that the court should assume that the plaintiff can prove everything they claim happened in their pleadings. In other words, the quality of the evidence or the credibility of the witnesses is not a factor.

Improperly Notarized Power of Attorney Results in Dismissal of Case against Allegedly Negligent Nursing Home

April 14, 2016 | Lebowitz & Mzhen

Earlier this month, the Arkansas Supreme Court issued an opinion dismissing what may have been a meritorious wrongful death case based on the fact that the document giving the plaintiff power of attorney was not validly executed. In the case, Quarles v. Courtyard Gardens Health & Rehab, the lower court dismissed the plaintiff’s case based on two reasons, one of which was the fact that the power of attorney document was notarized after the decedent had signed it, rather than simultaneously, as the law requires.

The Facts of the Case

Bernie Jean Quarles, the decedent, spent 11 months at the defendant nursing home before she was moved to another facility. In June 2010, Quarles allegedly executed a power of attorney document in favor of her son, the plaintiff. A short time later, while his mother was still alive, the plaintiff filed a lawsuit against the defendant nursing home on behalf of his mother, whom he claimed was “incapacitated.” The lawsuit alleged that the nursing home’s negligence resulted in the woman’s deteriorating health.

When the man’s mother died a few months later, he sought to substitute himself as the primary plaintiff. The parties were ordered to engage in arbitration to see if they could reach a mutually acceptable result. As a part of the mediation, the parties exchanged discovery. However, before arbitration began, the defendants asked the court to dismiss the case based on the fact that the power of attorney was never validly executed.

Politicians Speak Out against Nursing Home Abuse Posted on Social Media

April 7, 2016 | Lebowitz & Mzhen

The thought of a nurse who is charged with the care of elderly individuals engaging in a pattern of abuse against his or her patients is bad enough, but lately there has been a rash of cases in which abusive nurses are filming the abuse and posting the videos on social media. The victims in these videos are almost always mentally or physically ill nursing home residents who do not have the ability to fight back or even to ask their abusers to stop.

Of course, this kind of conduct is a violation of the duty of care that all nurses have to their patients. In fact, this duty of care extends beyond just licensed nurses and applies to anyone charged with the care of another person in a skilled nursing facility. When this type of abuse is discovered, the abused individual or their family may be able to seek financial compensation for the abuse and humiliation suffered through a Maryland nursing home abuse lawsuit.

Politicians Condemn Nursing Home Abuse, Seeking More Prosecutions

Aside from being a violation of the duty between caretaker and resident, nursing home abuse is also against the law. In fact, according to one news report, the Chairman for the Senate Judiciary Committee has been probing the U.S. Justice Department about how aggressively it pursues cases alleging nursing home abuse that has been posted on social media.

Nursing Home Lawsuits Brought by Surviving Family Members

March 28, 2016 | Lebowitz & Mzhen

When a nursing home employee’s negligent, reckless, or intentional actions result in the death of a resident, the family of the deceased resident may want to seek justice on behalf of their loved one. This is done through a Maryland wrongful death lawsuit.

Wrongful death lawsuits are similar to traditional negligence lawsuits, but require proof of one additional element: the relationship between the parties. In Maryland, only certain parties can bring a wrongful death case against a negligent or abusive nursing home employee. These are call “primary beneficiaries” and include the “wife, husband, parent, and child of the deceased person.”

However, sometimes there will be no primary beneficiary available to bring the lawsuit. In such cases, the law allows for a secondary beneficiary to proceed with the case. A secondary beneficiary is “any person related to the deceased person by blood or marriage who was substantially dependent upon the deceased.” Of course, this is more difficult to prove than a simple blood relation, because it requires establishing substantial dependence. In some states, if no primary beneficiary exists, then the case will be brought by the deceased’s estate.

When Nurses Are Criminally Charged for Abuse of a Nursing Home Resident

March 21, 2016 | Lebowitz & Mzhen

Abusing an elderly nursing home resident is a disgraceful act that is clearly in violation of a resident’s rights. Indeed, such conduct can result in both civil and criminal liability. In most cases of nursing home abuse, the criminal case will proceed to trial before the civil case. This can help the families of abused residents who are considering filing a claim against the nursing home because much of the investigation will already have been completed by the authorities. In addition, if the criminal case against the nursing home is particularly strong, this may incentivize the facility to consider a substantial settlement and keep the case from going to trial where even greater damages may be awarded.

When a nurse is found guilty or pleads guilty to a criminal offense involving the abuse of a resident, that will not automatically mean that the resident or the resident’s family is entitled to monetary compensation. A criminal prosecution is brought by the government, and seeks to implement a punishment against the nurse or facility. This may involve time in jail, probation, or a substantial fine. While a criminal court can order some restitution, it would not likely be a significant amount.

A civil case, on the other hand, is brought by those personally affected by the nurse’s conduct, and seeks monetary compensation for the physical and emotional injuries caused by the abuse. These cases, if successful, can result in significant monetary judgments against nursing home management, especially if punitive damages are sought and proven.

The Level of Culpability Required to Prove Nursing Home Negligence

March 14, 2016 | Lebowitz & Mzhen

When the phrase “nursing home negligence” is mentioned, it often conjures images of cruel, sadistic nurses intentionally failing to provide a nursing home resident the level of care necessary for them to live a peaceful life. However, the law does not require this kind of mindset in order to find a nursing home or nursing home employee legally negligent for the care provided to a resident.

Under the legal theory of negligence, which is the applicable theory in almost all nursing home cases, a plaintiff need only prove that a duty of care that was owed to the resident was violated and that this violation resulted in the resident’s injuries. This does not necessarily require any ill intent on the part of the nurse, although evidence of such intent will likely satisfy the requirement.

More often than not, however, nursing home negligence cases proceed on just negligence. It may be that a nurse tries to take on a job that two nurses should handle. Or perhaps a nurse is overworked and is not provided a break for an entire 12-hour shift and forgets to attend to a certain resident. In these cases, while the nurse may have the best intentions in mind, the level of care provided was not that which is expected or required in the nursing home context. And therefore, that nurse – or the nurse’s employer – may be found to be liable in a nursing home negligence lawsuit.

Arbitration Clauses in Nursing Home Contracts: Are They Binding?

March 7, 2016 | Lebowitz & Mzhen

In an ideal world, a nursing home would care for elderly people and allow them to live out their last years in peace and with dignity. However, anyone who has kept an eye on the headlines knows that this is not always the case. In too many cases, nursing home employees neglect or abuse the very residents for whom they are charged with caring. In such cases, the abused resident or their family may want to hold the nursing home responsible through a civil lawsuit seeking monetary compensation for their loved one’s suffering.

However, nursing homes, like many other businesses, have started to include arbitration clauses in the contracts that are signed prior to resident admission. These arbitration clauses are essentially an agreement not to go through the legal system, should any problems arise between the parties. Instead, the case would go before an arbiter whose decision very likely would be final.

The problems with arbitration clauses are several, but the chief concerns are that they are out of the public eye and are not always neutral. This is because the nursing home contract will often designate which arbiter will handle the case, essentially allowing the nursing home to pick their own “judge.”

New Trend in Nursing Home Abuse: Resident-On-Resident Abuse

February 26, 2016 | Lebowitz & Mzhen

Nursing home neglect and abuse have always been a concern to families who are considering placing a loved one in a nursing home. Until the recent past, most of these concerns were focused on the staff members who were charged with caring for nursing home residents. However, more recently, there has been an increase in the instances of resident-on-resident abuse in nursing homes across the country, including here in Maryland.

Resident-On-Resident Abuse and Who Is Responsible

The recent trend of resident-on-resident abuse is certainly alarming, and it gives rise to the question of who can be held responsible when such abuse occurs. Often, the abusive resident may not have the mental faculties to completely understand what they are doing, and even if they do possess a wrongful intent, they often do not have the ability to make the victim whole again.

This concern has led some to look to others, most notably nursing home administration, for answers. Those who run a nursing home have a duty to ensure the safety of their residents in most situations. While there are some unforeseeable events that may not give rise to nursing home liability, courts have held that nursing home administration does have a duty to protect against resident-on-resident abuse. Thus, when a resident is abused by another resident, there may be a civil cause of action against the nursing home that failed to provide the necessary supervision over one or both of the parties involved.