Nursing Home Negligence

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.

Nursing Home Resident Dies After Being Left Outside in the Sun

May 13, 2016 | Lebowitz & Mzhen

Nursing homes should be places where people can feel at ease placing their aging parents to help them get the medical care and attention that they need in their final years. However, the reality of what nursing homes have come to become in our society is far from that. Partly since nursing homes operate on a for-profit model, the level of care provided to patients is secondary or tertiary to other concerns, including staffing costs.

Just as in any other business scenario, nursing homes get what they pay for when they consider whom they should hire. By hiring inexperienced nurses or those with poor records or care, nursing homes may be able to save a few dollars in the short-term but place their patients at risk. Indeed, these are the very nurses who are likely to act in abusive or neglectful ways when placed under stress.

However, working in a stressful environment is no excuse to neglect or abuse another human being who has been placed in your care. For these reasons, the State of Maryland allows nursing home residents or their families to bring lawsuits against nursing home employees and management in situations in which the nursing home failed to adequately care for their loved one.

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.

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.

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.

Nursing Home Abuse Is Often Covered Up by Administration

January 15, 2016 | Lebowitz & Mzhen

When someone places their loved one in a nursing home, they expect that the employees at the facility will put the health and safety of their loved one first. However, this is not always the case. Nursing home employees are often over-worked and end up working long hours without breaks. Nurses are human, and sometimes they snap, lashing out in an abusive manner at the very residents they are supposed to be caring for.

To make matters worse, when this abuse does happen, the nursing home administration often acts to cover up any evidence of the alleged neglect or abuse in hopes of keeping the incident under the radar. Administration tries to cover up the evidence because if the authorities do find out, the home can be fined thousands of dollars. Additionally, if the loved ones of the resident affected by the abuse or neglect find out, they can file a civil suit for monetary damages against the nursing home employees and administration, potentially resulting in a substantial payout by the nursing home.

Proving a case against a nursing home employee or administration can be difficult enough, even without the home’s administration hiding or destroying evidence. This is because discovering competent and admissible evidence of abuse or neglect is often difficult. For example, residents often have few people to go to when reporting the abuse, and their claims may not always fall on listening ears. However, the reality is that nursing home abuse and neglect are very real problems.

Doctrine of Equitable Tolling May Save Some Nursing Home Negligence Lawsuits from Dismissal

December 29, 2015 | Lebowitz & Mzhen

Earlier this month, the Sixth Circuit Court of Appeals issued an opinion in a case that involved allegations of nursing home negligence that were filed after the applicable statute of limitations outlined in the Federal Tort Claims Act. In the case, Hawver v. United States, the plaintiff may be given the opportunity to show the court that equitable factors justified the late filing of the case.

The Facts of the Case

Briefly, the relevant facts of Hawver v. United States are as follows. Hawver claimed that a federally run nursing facility was responsible for the death of her mother, based on the negligent care they provided while she was in the facility’s care. Hawver filed her case in federal district court, invoking the court’s subject matter jurisdiction. This is important because federal courts cannot hear every case between two parties. There must be a question of federal law, the case must involve a federal agency or employee, or the case must arise between parties from two different states and have a certain minimum amount in controversy. Here, the plaintiff was filing suit in federal court based on the fact that the nursing facility was federally qualified.

Understaffing: The Number One Cause of Nursing Home Abuse and Neglect

December 15, 2015 | Lebowitz & Mzhen

Nursing homes are charged with caring for elderly loved ones when a family cannot take up the task. Most nursing homes, as well as the nurses and other people whom they employ, care deeply about the residents in their facility and will do whatever they can to ensure a safe and pleasant stay. However, nursing homes are businesses, and because of that there is often a tension between what is best for the resident and what is best for the bottom line. This is nowhere more evident that in the context of staffing.

Nursing homes are very labor-intensive to run. The very nature of the business is to care for people with varying needs and often substantial ones. While there are no laws governing staff-to-resident ratios, it is fair to assume that the lower the ratio, the less individual attention each resident is getting. In some cases, the ratio gets so low that there are not enough nurses to care for the patients in the home. It is under these circumstances that nursing home abuse or neglect is most likely to occur.

Nurses are human, and like all other humans they are capable of getting frustrated and upset, especially when they are overworked. Even a nurse with the best of intentions can lose her temper with a resident if she has no assistance and has been on her feet for the past 10 hours. It is for this reason that nursing home management, in addition to the individual nurses, need to be held liable when an injury does occur.

Four Nursing Homes Fined by Department of Health for Various Safety Violations

December 1, 2015 | Lebowitz & Mzhen

Earlier this month in New Hampshire, the Department of Public Health fined four local nursing homes for failing to comply with various rules and regulations relating to patient safety. According to one local news source, the allegations ranged in seriousness from minor infractions to serious allegations of abuse.

For example, one nursing home was found to have leaking sinks, dirty lifts, pain peeling off the wall, broken bed rails, and water dripping from the ceiling. Inspectors also noted an incident in which a resident was found to have a fairly serious abrasion that inspectors believe was caused by the home’s use of a lift without the proper padding. In response to that resident’s request for help, one nursing home employee failed to respond for one hour and 15 minutes. That employee was subsequently fired for neglecting the resident.

Another example of a lapse in care occurred at another nursing home and involved a verbally abusive resident who was not properly monitored. Evidently, the resident stated that “I can hit anyone I want to” and punched another resident. The aggressive resident was taken to the emergency room for evaluation, and the doctor told the staff that they should check on the man every 15 minutes. However, citing the unavailability of staff, the nursing home failed to comply with this recommendation.

Investigative Reporting Uncovers Nursing Home Neglect

November 23, 2015 | Lebowitz & Mzhen

Earlier this week, a New Jersey news source published an article documenting an investigative report that looked into allegations of abuse and neglect in area nursing homes. The results were published in a recent article.

The article documents several upsetting instances of abuse and neglect, as well as a theme of frustration and lack of care and consideration on the part of management. One woman interviewed in the article, a former nurse, claimed that she was unofficially forced out after she blew the whistle on other employees who were engaging in abusive and neglectful conduct.

One example she relayed was an 85-year-old resident who had been at the nursing home for four years. The nurse reported seeing another nurse at the facility tie the elderly woman to a wheelchair to keep her from moving. She was able to capture an image and provided that to reporters, who confronted several nursing home employees, asking how often this happens. Not surprisingly, everyone denied that such conduct ever occurs and refused to speak to anyone after they were shown an image proving it happened at the facility.