Maryland Nursing Home Lawyer Blog

Nursing Home Arbitration Clauses May Punish Patients and Families For Expecting Quality Care

August 5, 2016 | Lebowitz & Mzhen

Arbitration clauses have become more and more common in many types of contracts between consumers and businesses over the last 50 years, However, the dramatic increase in the use of arbitration clauses in medical care agreements should be of special concern to consumers and their advocates. By agreeing to an arbitration clause, a patient or their family may be giving up their right to sue the other party in state or federal court and instead assenting to resolve disputes through what is known as binding arbitration. Binding arbitration is a process that closely resembles a judicial proceeding, although the “judge” of an arbitrated dispute is simply a private party, and the court rules and procedures that are used in judicial proceedings may not apply.

Why Do Providers Propose Binding Arbitration, and Why Would Consumers Agree to It?

Binding arbitration is promoted by companies and industry groups as a simplified way of resolving disputes that could get out of hand if they were processed through a full-fledged judicial proceeding. Complainants are legally entitled to a fair process through arbitration, and state and federal laws are applied to their claims.

In reality, the differences between an arbitration proceeding and a judicial proceeding almost always favor the large company, with consumers and patients receiving the short end of the agreement. A recent New York Times article discussing the use of arbitration agreements in nursing home contracts notes that although agreeing to binding arbitration cannot be mandatory for a prospective patient, the agreements are often structured to hide that fact. Many consumers agree to arbitrating potential disputes because they don’t know they have the right to refuse it.

Increasing Use of Social Media Has Resulted in Unexpected Nursing Home Abuse

July 26, 2016 | Lebowitz & Mzhen

A recently published news article discusses the difficulty that law enforcement and regulatory authorities have been facing nationwide in attempting to apply existing laws to curb the increasing pattern of “social media abuse” of long-term care and nursing home residents by health care workers. According to the article, there have been dozens of reported instances in which health care workers publish explicit photos or videos of nursing home patients on social media. The resulting posts have been offensive, hurtful, and exploitative of the nursing home patients, and they demonstrate the unprofessional levels of care that some nursing facilities provide.

Current Laws Addressing Nursing Home Abuse May Not Go Far Enough

According to a recently published report noted in the article, current laws in many states protect nursing home patients from social media abuse by making it illegal for a health care worker or assistant to post an image containing a resident’s genitals on social media. Unfortunately, many of the abusive and humiliating posts that have been made don’t include an image of a patient’s genitals but remain extremely offensive. One such post mentioned in the article included an image of an elderly resident’s hands and legs covered in feces, accompanied by a caption that contained profanity and made fun of the man.

Court Holds Family Member of Nursing Home Resident Cannot Consent to Arbitration Unless Resident Is Deemed Incompetent by Primary Care Physician

July 19, 2016 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of Mississippi issued an interesting opinion for anyone who signed an arbitration clause when admitting their loved one to a nursing home. In the case, Tarvin v. CLC of Jackson, the court determined that the arbitration clause signed by the plaintiff on behalf of her elderly father was not binding because she did not have the legal right to waive her father’s rights, absent a determination of his incompetency.

Arbitration Clauses in Nursing Home Contracts

Whenever a party enters into a contract, they try to include as many favorable terms as possible. However, sometimes nursing homes can overreach, including arbitration clauses that may act to prevent the resident from using the court system to adjudicate any disputes between the parties. Indeed, if an arbitration clause is valid, the parties are required to go to arbitration instead of filing a lawsuit. This can have negative effects on plaintiffs, since usually the nursing home selects which arbitrator to use, giving rise to potential favoritism.

Arbitration clauses, however, are not always valid. In fact, in Tarvin, the court held that the arbitration clause at issue could not be enforced. The court explained that a nursing home resident’s right to use the court system is an important one, and it cannot be waived by just anyone. The court explained that it is only when a resident is deemed incompetent that a loved one can validly sign a binding arbitration agreement. In the Tarvin case, the doctor who determined the plaintiff’s father was incompetent was not his primary care provider. Thus, the court held that there was insufficient evidence proving the elderly man’s incompetence, and he did not validly consent to arbitration through his daughter.

Plaintiff’s Failure to Produce Expert’s Report in a Timely Manner Results in Early Dismissal

July 12, 2016 | Lebowitz & Mzhen

Earlier this month, a state appellate court issued a written opinion in a wrongful death case brought by the loved one of a nursing home resident whom the plaintiff claims was neglected prior to her death. In the case, Handy v. Madison County Nursing Home, the plaintiff’s claims were ultimately dismissed by the court during a summary judgment proceeding because the plaintiff failed to meet her initial burden to show that a prima facie case existed against the nursing home.

The Facts of the Case

The plaintiff filed a wrongful death lawsuit against the nursing home that had cared for her mother in the three years leading up to her death. In her complaint, the plaintiff alleged that nursing home staff members were negligent in failing to detect a bowel obstruction that ultimately contributed to her mother’s early death. As a part of her case, the plaintiff attached a certification explaining that, if called to testify, her expert witness would explain that the defendant nursing home violated a standard of care it owed to her mother.

In a pre-trial summary judgment proceeding, the nursing home asked the court to dismiss the case based on the fact that the plaintiff failed to produce evidence of the home’s negligence. Specifically, the nursing home argued that the certification was not sufficient to prove negligence and that an expert’s affidavit was necessary. The plaintiff sought several continuances and failed to provide an expert’s affidavit at each scheduled listing. Eventually, the nursing home asked the court to dismiss the case based on a lack of evidence.

Intellectually Disabled Nursing Home Residents Are at an Increased Risk of Suffering Abuse or Neglect

July 5, 2016 | Lebowitz & Mzhen

While nursing homes are charged with the duty to care for each of their many residents, the reality is that not all nursing homes take that duty to heart. In fact, almost all nursing homes are for-profit enterprises that, at the end of the day, must account for the costs of labor, supplies, and other expenses. Such an influence may incentivize nursing home management to cut corners in relation to the quality of care they provide the residents in their care.

This may be nowhere more true than in the case of intellectually disabled nursing home residents, who for one reason or another suffer from nursing home abuse and neglect at higher rates than non-intellectually disabled residents. Indeed, according to one news article reporting on the plight of intellectually disabled nursing home residents, several states are currently facing lawsuits based on the inadequate services provided to these individuals.

Evidently, a federal judge in San Antonio, Texas recently granted class-action status to a group of nearly 4,000 intellectually disabled nursing home residents across the state. The allegations in that case are that the State of Texas has done little if anything to secure a safe place for these individuals, often placing them in homes that are patently unequipped to handle the residents’ needs.

Court Improperly Failed to Allow Nursing Home Plaintiff to Name Additional Defendants Later Discovered to Be Involved in Key Decision-Making Roles

June 28, 2016 | Lebowitz & Mzhen

Earlier this month, an Oklahoma court issued an opinion in a case brought by the surviving family members of a woman who died in a nursing home while in the defendants’ control. The case, Maree v. Neuwirth, involved the plaintiffs’ decision to add additional defendants to the lawsuit after they discovered that these parties may have had a key role in the decision-making leading up to their loved one’s death. The court hearing the case held that it was improper for the lower court to deny the plaintiffs the ability to add these defendants.

The Facts of the Case

Back in January 2011, the elderly loved one of the plaintiffs fell while a resident at the defendant nursing home. Two days later, she died in the hospital. It was alleged that the elderly woman’s injuries were worsened because nursing home staff failed to respond to a “call light” in a timely manner.

The woman’s loved ones filed a lawsuit against the nursing home about two years after the alleged act of negligence. Initially, the lawsuit was filed against most of the nursing home’s management, as well as against the nursing home itself.

A Nursing Home’s Responsibility to Prevent Resident-On-Resident Abuse

June 21, 2016 | Lebowitz & Mzhen

It used to be that when the term “nursing home abuse” was mentioned, the mostly likely culprit engaging in the abuse was a staff member of the nursing home. However, according to a recent news report, that may be changing. Evidently, the Annals of Internal Medicine recently commissioned a study of 10 New York nursing homes to see the rates at which residents are engaging in abusive behaviors among themselves. The results were shocking.

According to the study, about 20% of all nursing home residents reported that they suffered some kind of abuse caused by another resident. Most of the abuse was verbal, consisting of threats, swearing, or belittling, but there was a significant amount of physical and sexual abuse that was found. In fact, according to the report, 5% of nursing home residents reported suffering physical abuse, and 0.6% reported being sexually abused by another resident.

The study notes that the lesser forms of abuse are precursors to the more serious types of abuse, and it is imperative that nursing home staff intervene before the pattern of abuse between two given patients escalates. The study also found that residents suffering from dementia or those who were placed in a facility with a high patient-to-staff ratio were more likely to be victimized by another resident.

What a Rapid Deterioration of a Loved One’s Condition May Mean

June 14, 2016 | Lebowitz & Mzhen

Nursing homes are a necessity in today’s busy society. With so many dual-income households, and the advancement of complex medical technology, it becomes difficult if not impossible to care for aging loved ones as they require more and more assistance. When aging loved ones reach a point in their lives at which they need constant care, a nursing home is one of the few options available.

Generally speaking, nursing homes are not known for the quality of care they provide the elderly. With daily reports of abuse and neglect, it is difficult to find a satisfactory home in which to place a loved one. However, ultimately a home must be selected.

When an elderly loved one is placed into a nursing home, it may be tempting to think that any deterioration of their condition is due to their new surroundings. After all, they are no longer in the comfort of their own home, and they may not be operating on their own schedule any longer. To be sure, this may cause some discomfort at first. However, assuming that a rapid deterioration in a loved one’s health is due to their new environment is a mistake that may cost an elderly loved one dearly, since often a rapid deterioration in health is a sign of nursing home neglect.

Court Finds Nursing Home Facility Waived Its Right to Seek Mediation in Wrongful Death Case

June 7, 2016 | Lebowitz & Mzhen

Earlier this month, the South Carolina Supreme Court issued a written opinion illustrating how a party’s failure to be upfront with its intention to compel mediation may prevent that party from later compelling mediation. In the case, Johnson v. Heritage Healthcare of Estill, the court determined that the defendant nursing facility waived its right to seek arbitration after the nursing facility failed to demand arbitration when the plaintiff initially filed the lawsuit.

The Facts of the Case

The plaintiff’s mother passed away while in the care of the defendant nursing home. After her mother’s death, the plaintiff filed a wrongful death case against the nursing home, alleging that the negligent care it provided to her mother led to her death. Prior to admitting her mother to the home, the plaintiff had been granted a Power of Attorney and had signed an arbitration agreement, consenting to submit any claims to an arbitration panel rather than pursuing them through the court system.

Once the defendant nursing home got notice of the claim, it answered the complaint, asserting several defenses. One of the defenses cited was that the plaintiff had agreed to seek arbitration, rather than use the court system, in the contract signed prior to her mother’s admission. The nursing home also sought a discovery order from the court, ordering the plaintiff to disclose certain documents. Importantly, while the nursing home cited arbitration as a defense, it never actually demanded arbitration or initiated arbitration proceedings. It was not until eight months later that the nursing home filed a motion to compel arbitration.

State Court Holds that Incompetence May Act to Toll a Statute of Limitations

May 27, 2016 | Lebowitz & Mzhen

Earlier this month, the West Virginia Supreme Court issued an opinion in a case requiring the court to decide whether a person’s mental incompetence can toll a statute of limitations. In other words, the question was whether a person’s inability to understand that they may have a viable case can actually excuse that person from filing a timely lawsuit. The court ultimately held that in some situations, including the one in front of it, a person’s incompetence may toll the statute of limitations.

The Facts of the Case

The plaintiff was the estate of a man who passed away while in the defendant nursing home’s care. According to the court’s opinion, the man resided at the defendant nursing home for 10 years. However, during the last several years, according to the man’s estate, the facility treated him poorly, ultimately leading to his early death.

The man’s estate filed the lawsuit approximately two years after the man died. At pre-trial hearings, the defendant attempted to limit the evidence that the plaintiff was permitted to submit to the court, arguing that some of the evidence was from before the allowable time period, according to the statute. The statute was a two-year statute.