Nursing Home News

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.

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 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.

The Future of Nursing Home Arbitration Clauses

February 14, 2017 | Lebowitz & Mzhen

Over the past few decades, arbitration clauses have become ubiquitous in the contracts that residents (or their family members) must sign prior to being admitted into the nursing home. These arbitration clauses may act to prevent a nursing home resident or their family from pursuing any legal action in the court system against the nursing home. Instead, these claims are settled through an arbitration company that will hear both sides and issue a binding decision. Arbitration clauses are enforced without regard to the strength of the evidence, meaning that even the strongest cases of nursing home abuse and neglect may be prevented from ever reaching a courtroom.

The problem for nursing home residents and their families is that the nursing home selects the arbitration company in the pre-admission contract. As a result, the companies that are selected are potentially biased in favor of nursing homes. Additionally, the language of the arbitration clause is often buried deep in dense paragraphs, making it unlikely that potential residents or their family members will read and comprehend the rights they are giving up by signing the contract. This has led many arbitration contracts to be held to be invalid as a matter of law and also as a matter of good public policy.

State Passes Bill Providing Cameras in Nursing Home Facilities in Hopes of Decreasing Nursing Home Abuse and Neglect

December 21, 2016 | Lebowitz & Mzhen

Nursing home abuse and neglect have a well-documented history throughout the United States. Sadly, many of the victims of this abuse suffer from serious physical and mental health disorders, such as dementia or Alzheimer’s disease. Since the advent and expansion of social media, this unfortunate trend has accelerated. In fact, the problem has become so common that many state legislatures are looking for ways to curb the rampant nursing home abuse and neglect epidemic.

According to one local news source servicing the Chicago area, Illinois lawmakers have recently passed a bill that will provide funding to install 100,000 cameras in nursing home facilities across the state. The bill, which would not allow for the installation of cameras without a resident’s consent, allocates a $50,000 budget annually to install and service the cameras. It is hoped that the presence of cameras will act not only to provide evidence of abuse after the fact but also to serve as a deterrent to nursing home employees.

Advocates of the bill call it a “win-win for all stakeholders,” explaining that truly innocent nursing home employees who has been wrongfully accused will be able to rely on the video footage to help prove the allegations were unfounded. However, it is expected that the policy will be met with some resistance from the nursing home industry, which is no doubt aware of the fact that the installation of cameras in facilities may result in exposure to additional liability through increased reporting of abuse and neglect.

Nursing Home’s Failure to Keep Out Drug Dealers Results in Staggering Increase in Residential Overdoses Nationwide

November 28, 2016 | Lebowitz & Mzhen

Medical and social services and law enforcement authorities throughout our nation are coming to terms with a dangerous epidemic of opiate and opioid abuse that has been affecting Americans of all ages and socioeconomic groups. According to a recently published news report, nursing homes and rehab facilities are not immune from this problem, and a failure to properly monitor both residents and visitors for signs of drug abuse is causing an increase in drug-related overdoses and deaths in several states.

The fact that many nursing home residents are highly medicated and isolated from the public view keeps the number of overdoses and drug-related deaths hidden. While nursing facilities cannot and should not be held legally responsible for every instance of drug abuse or overdose that occurs on site, the management and staff of these facilities do have a responsibility to monitor their residents and act reasonably to prevent illegal and dangerous drugs from being sold or illegally consumed by their residents.

Chicago Area Nursing Facility Fined Over $100,000 after Five Residents Suffer Overdoses Within Days

The report explains the case of one nursing facility in Illinois that had five residents hospitalized for heroin overdoses within only days, with two of those patients using the drugs and overdosing again within hours of their return to the facility. The Center for Medicare and Medicaid Services and the Illinois Department of Health have fined this facility over $100,000 in total for failing to properly monitor and treat their residents with drug addictions.

Big Changes Coming to Most Nursing Home Arbitration Agreements

November 18, 2016 | Lebowitz & Mzhen

A popular national news source has recently published an article discussing a change of policy by the Centers for Medicare Services that should open up many nursing home contracts to the possibility for the resident to sue nursing home providers accused of abuse or neglect directly in state or federal court, instead of being required to submit their claim to arbitration, a process that generally favors defendants.

Medicare Foots Some or All of the Bill in Most Nursing Home Agreements

Health care improvements and the changing dynamics of how Americans approach old age and family relationships mean that most Americans who reach the age of 75 will need long-term, full-time nursing care at a residential facility at some point in their lives. With the increase in the breadth of the nursing care industry and the bill often being paid by the federal government, providers are often incentivized to provide substandard care and cover up or downplay signs or accusations of abuse.

Signs of Nursing Home Abuse or Neglect

It can be difficult for the families of nursing home abuse victims to know when abuse has occurred. Many of the residents who are the most vulnerable to abuse, whether intentional or the result of neglect, suffer from dementia or other cognitive disorders that may make it difficult for family members to tell if their loved one has been a victim or not. There is also a sense of pride and not “wanting to be a burden” that is often present in older generations, and it may prevent nursing home residents from reporting abuse.

New Rule Restricting Arbitration Clauses May Result in Better Care for the Elderly

November 7, 2016 | Lebowitz & Mzhen

As this blog discussed in a post last month, the Centers for Medicare and Medicaid Services recently announced a new rule that would deny funding to any nursing home that includes a mandatory arbitration clause in its admission contract. Essentially, the new rule uses fiscal policy to discourage nursing homes from including arbitration clauses in their contracts. This means that abused or neglected nursing home residents will be able to use the court system – rather than a private, confidential, and often one-sided arbitration system – to resolve claims against nursing homes.

Some commentators suggest that the new rule may also lead to an overall increase in the level of care nursing homes offer to residents. According to one recent news article discussing the new rule and its potential implications across the nursing home industry, nursing homes will now be forced to deal with the claims against them in public courthouses rather than in confidential arbitration.

One of the reasons the nursing home industry favored arbitration for years was that the results of the arbitration – favorable or not – were not made a part of the public record. However, with fewer nursing homes including arbitration clauses in their admission contracts, the public will have a greater understanding of the types of claims that arise in nursing homes. This increased awareness, it is suggested, will result in nursing homes trying harder to avoid potential claims.

Nursing Home Industry Fights Back Against New Rules Restricting Arbitration Clauses

October 28, 2016 | Lebowitz & Mzhen

Earlier this year, the Centers for Medicare and Medicaid Services (CMS) issued a new rule that nursing homes that include binding arbitration clauses in their contracts will not be eligible for federal funding. In a recent development, the American Health Care Association (AHCA) – a non-profit group formed to advance the interests of the nursing home industry – filed a lawsuit in an attempt to block the newly announced rule.

According to one news report covering the recently filed case, the AHCA and several other nursing home advocacy groups claim that the CMS and the Department of Human Services overstepped their legal mandate in creating the rule. The groups seek to have the rule removed so that nursing homes that implement binding arbitration clauses can once again receive federal funding.

Nursing home advocates claim that arbitration benefits residents and their families because it enables the inexpensive resolution of claims. By some estimates, arbitration can reduce the cost of litigation for nursing homes by 30-35%. By decreasing the costs associated with defending a claim, the argument goes, nursing homes are more willing to offer fair settlement terms to injured residents and their families.

Federal Funding Cut for Nursing Homes That Force Residents and Their Families into Arbitration

October 12, 2016 | Lebowitz & Mzhen

Before a resident is admitted to a nursing home, a contract must be signed. The contract outlines both parties’ rights and responsibilities, as well as setting out some ground rules in the event that the resident or their family sues the nursing home. Over the past decade, more and more nursing homes have included arbitration clauses in these contracts, forcing residents to resolve all disputes through a third-party arbitration company rather than use the court system.

In these contracts, the forum of the arbitration is often chosen by the nursing home, and the outcomes of disagreements have historically favored nursing homes. However, in a very important new rule announced by the Department of Health and Human Services, nursing homes that require residents and their families to submit to arbitration rather than the court system will no longer receive federal funding. It is estimated that this new rule will affect 1.5 million nursing home residents nationwide.

Since the nursing home industry has benefited greatly from these arbitration clauses, the industry has reacted negatively to the new announcement. In fact, one spokesperson attacked the Department of Health and Human Services’ legal authority to implement such a rule, saying that the rule “clearly exceeds” the agency’s authority. He also claimed that the rule was “wholly unnecessary to protect residents’ health and safety.”