Wrongful Death in Nursing Homes

Wrongful Death Lawsuit Against Maryland’s Largest Nursing Home Raises Unsettling Questions

October 30, 2024 | Lebowitz & Mzhen

The statistics speak for themselves: Elder abuse in nursing homes is much too commonplace across Maryland… and the nation. Sadly, too, the trend is not only limited to second- and third-tier nursing facilities. As personal injury specialists, the attorneys at Lebowitz & Mzhen, LLC, are very familiar with the uncomfortable fact that seniors living in elder care facilities may be at greater risk of abuse, injury or death than their loved ones may know.

It’s so very unfortunate that a large segment of our aging population residing in nursing homes, elder care facilities and long-term care operations are likely to experience some kind of physical or mental abuse, or simply poor care or neglect at the hands of nursing home employees — and even medical professionals charged with their well-being. Again, this is not surprising to those who follow the elder care industry; studies by the National Council on Aging indicate that one in 10 American citizens 60 years and older have experienced some form of elder abuse — shockingly, more than 95 percent of incidents involving abused residents of assisted living facilities, long-term care operations and nursing homes typically go unreported.

Not long ago, a news story revealed some terrible facts surrounding the apparent abuse and ultimately the death of an elderly resident at the Hebrew Home of Greater Washington, located in Rockville, MD. The information came to light as part of a multiple-count wrongful death lawsuit filed by the estate of Sara McAlpin, who died at the age of 96 from complications related to a Stage 4 pressure ulcer (also known as a bed sore). Bed sores in patients who reside at elder care facilities are considered evidence of neglect and Ms. McAlpin’s medical condition featured one of the worst kinds of decubitus ulcers — a large open wound greater than “the diameter of a teacup” exhibiting exposed bone and damage to the tissues underneath.

Employee Charged in Nursing Home Death Case Had Previously Been Fired for Neglect

January 31, 2024 | Lebowitz & Mzhen

Under the best of circumstances, it can be difficult to select a good nursing home or care facility for your loved ones. Trusting such institutions to help our loved ones and family members following hospitalizations or for long-term care is a stressful and complicated process. That decision can be even more nerve-wracking when widespread practices of elder abuse, medication errors, and financial abuse are uncovered. When nursing homes and care facilities fail to meet the basic requirements of care for residents, they must be held accountable. A recent local news article discussed prior employment red flags in an employee’s work history who is now being charged in a nursing home death case.

According to the article, amidst the ongoing investigation into the death of an elderly woman at a Pueblo West nursing home, former employers are now highlighting a pattern of negligence by the caretaker charged in connection to the incident. Prior to working at the Pueblo West nursing home, the employee worked at the Boone Guest Home, an overnight assisted living facility for individuals with developmental disabilities. A former supervisor confirmed that the worker was fired for caretaker neglect from Boone Guest Home.

The assistant director at Boone Guest Home stated that in September 2022 the police became involved in the firing of the worker. Another manager had gone to the home to check in on the worker, who was caring for three developmentally disabled elders, and found nobody around and the house “completely destroyed.” The supervisor said that the house was completely overturned, with couches flipped over, drawers pulled out, and the resident’s personal medication and cash either missing or scattered around the home. The worker is separately charged with Negligently Causing Death and Negligently Causing Serious Bodily Injury to an At-Risk Adult for the death of a resident in the Pueblo West nursing home.

Lawsuit Alleges Nursing Home Neglect After Resident Strangled to Death

October 1, 2022 | Lebowitz & Mzhen

When choosing a nursing home, families want to ensure their loved ones receive the best possible care. However, nursing home abuse and neglect can jeopardize residents’ safety. When a nursing home fails to protect its residents, it leaves them vulnerable to serious injury or death.

A nursing home in California is facing a wrongful death lawsuit after a mentally ill resident allegedly strangled his 90-year-old roommate to death. A caregiver at Avocado Post Acute nursing home found the victim in his room with abrasions on his neck. He was also vomiting blood and presenting with respiratory distress. He was then transferred to the hospital, where he later died from his injuries. The victim’s family adult children claim that Avocado never informed them of the attack and omitted details about their father’s visible injuries. Instead, according to the lawsuit, Avocado staff allegedly told the hospital he was suffering from lung cancer and in respiratory arrest. Only after the victim was moved to hospice did his family learn the full extent of what had transpired. The lawsuit also claims Avocado knew the alleged murderer had previously attacked patients at the nursing home, including a prior altercation between him and the victim. Moreover, the family alleges that the nursing home failed to discharge this resident, despite his violent tendencies, in the face of financial pressure to turn a profit.

Sadly, this incident is one of many injuries reported at Avocado. As a recent news article reported, the California Department of Public Health has received 628 complaints against the nursing home since 2019. These complaints allege caregivers at the nursing home sexually assaulted a quadriplegic resident, left a resident with swallowing precautions alone to eat lunch before she choked to death, and slammed a resident into a wall, among other incidents. In light of these allegations, the Center for Medicare and Medicaid Services (CMS) had previously announced it would terminate Avocado’s contract with the Department of Health and Human Services. However, CMS later reversed its decision, finding that the nursing home had since reached sufficient compliance with its standards. As of now, the nursing home remains open.

Family’s Covid-19-Related Wrongful Death Claim Against Nursing Home is Allowed to Proceed

March 31, 2022 | Lebowitz & Mzhen

Some experts have estimated that over 1 million Americans have died from the virus that causes Covid-19. Hospitals, nursing homes, and medical providers are not responsible for keeping all patients alive and well during a deadly pandemic, as that would not be possible. Although medical providers are not legally responsible for every death that happens on their watch, if an injury or death is caused, worsened, or not prevented because a medical provider acts negligently, then the injured party or their representatives may have a claim for damages. A recently published news report discusses one such case, in which the family of a woman who died of Covid-19 while living at a nursing home has sued the nursing home for wrongful death.

The plaintiffs in the recently decided case are the relatives of a 65-year-old woman who died of Covid-19 in April of 2020 while residing at a New York nursing home that is operated by the defendant. According to the facts discussed in the plaintiffs’ complaint, the defendant failed to uphold the proper standard of care in treating the patient. Specifically, the complaint alleges that there was an unreasonable delay in diagnosing the patient and that once the diagnosis was made, the nursing home negligently failed to give her the proper treatment for the disease. The complaint alleges that the nursing home’s negligence in failing to properly treat the patient was the ultimate cause of her death.

In response to the plaintiff’s lawsuit, the defendant filed a motion to dismiss, claiming that as a medical provider in a Covid-19 related case, they were immune from suit based on a law passed in 2020 by the state legislature. In response, the plaintiff argued that the immunity law was repealed in 2021 and that the repeal applies retroactively to acts of negligence that occurred in 2020. Because the law was in fact repealed, the court ruled in favor of the plaintiffs, and the suit will proceed toward trial.

Proving Causation in a Maryland Nursing Home Abuse or Neglect Case

February 10, 2021 | Lebowitz & Mzhen

Establishing causation in a Maryland nursing home case can be difficult, particularly because residents are often sick when they enter the home. With residents that were already sick, it can be difficult to prove that the nursing home’s neglect or abuse caused the resident’s injuries or death or accelerated them. Additionally, residents also may be unable to testify because they lack competency or have already passed.

A plaintiff in a nursing home negligence case in Maryland must prove that the nursing home’s negligent act or failure to act was both a cause-in-fact of the resident’s injuries and a legally cognizable cause. Proving the cause-in-fact means showing that but-for the nursing home’s negligent conduct, the resident’s injuries would not have resulted. In cases where more than one factor may have caused the resident’s injuries or death, Maryland courts use the substantial factor test. Under this test, a court will consider whether the nursing home’s conduct was a substantial factor causing the plaintiff’s injuries.

What Is Causation in a Nursing Home Abuse or Neglect Lawsuit?

Proving that the defendant’s conduct was a legally cognizable cause means demonstrating that the defendant’s conduct was sufficiently related to the injuries that the defendant should be held liable. Courts may consider whether the resulting injuries were a foreseeable consequence of the defendant’s conduct and whether holding the defendant liable would be fair under the circumstances. A plaintiff must prove causation (and other elements of the claim) under the preponderance of the evidence standard, which requires showing that it is more probable than not that the defendant’s negligent act caused the plaintiff’s injuries. It is insufficient that it is a mere possibility that the defendant’s conduct caused the resident’s injuries.

Maryland Nursing Home Neglect Puts Residents At Risk of Freezing to Death

October 23, 2020 | Lebowitz & Mzhen

When Maryland families move a loved one into a Maryland nursing home, they are entrusting the home and the staff to take care of their loved one, to keep them safe, healthy, and comfortable. Tragically, however, nursing home neglect is a significant problem in nursing homes across the country, and Maryland is no exception.

Nursing home neglect can take many forms. Perhaps staff members fail to check up on a sick resident every hour, as they are supposed to, and as a result, the resident suffers alone with no one realizing. Neglect can also be medical neglect—failing to take medical concerns seriously, or administer medication on time. Sometimes neglect can simply be leaving the resident alone when they are in dangerous circumstances.

For a tragic example of neglect, take a recent nursing home death where a 90-year-old woman was found dead outside her nursing home one morning. According to a local news article covering the incident, the resident allegedly got into an argument with a staff member at the nursing home one night and walked outside to get some space. The next morning, she was found dead on a bench on the property. Temperatures that night dropped to around 26 degrees, and it is suspected that the resident froze to death. The resident’s family was not even contacted by the nursing home—they found out of the death only through the local coroner’s office.

Wrongful Death Claims Following a Maryland Nursing Home Death

August 5, 2020 | Lebowitz & Mzhen

In the event of the death of a resident at a Maryland nursing home, the resident’s family may be able to recover compensation through a Maryland wrongful death lawsuit. However, determining fault in a nursing home abuse or neglect case is not always straightforward, and the assistance of a skilled personal injury lawyer can be an invaluable asset to families who are unfamiliar with the process.

Maryland’s Wrongful Death Act allows family members to file a civil claim against parties at fault for the decedent’s untimely death. A wrongful death claim is intended to compensate family members that have suffered a loss due to the loss of the decedent. It also permits the decedent’s family to hold wrongful actors responsible in the same way that the decedent could have if the decedent had lived.

A wrongful death claim is often filed by a spouse, parent, or child of the decedent. Such plaintiffs are considered “primary” plaintiffs under the Act. Only a primary plaintiff can file a wrongful death claim, if one exists. If the decedent does not have a living spouse, parent, or child, the claim can be filed by a “secondary” plaintiff. A secondary plaintiff is another individual who was related to the decedent by blood or by marriage and who was substantially dependent upon the decedent.

The Enforceability of Maryland Nursing Home Arbitration Agreements

June 19, 2020 | Lebowitz & Mzhen

On several occasions, we have written about arbitration clauses in Maryland nursing home abuse and neglect cases. An arbitration clause is an agreement, typically within a nursing home resident’s contract or the papers required to sign when moving in, that says any disputes that arise will be handled through arbitration rather than through litigation. Arbitration proceedings are confidential and final, and the agreements mean that residents have signed away their right to sue the nursing home in court if they suffer abuse or neglect at their hands. Arbitration tends to be favored by nursing homes because it costs them less, the outcomes tend to be more favorable to the nursing home, and they can avoid bad publicity.

In a recent opinion, a state appellate court considered the validity of arbitration agreements even when the organization listed in the agreement as the arbitrator was no longer hearing cases. The case sheds light on how arbitration issues might play out in Maryland. According to the court’s written opinion, the plaintiff placed her husband in a nursing home and signed an arbitration agreement that all disputes would be solved by arbitration in accordance with procedures from the National Arbitration Forum. However, the National Arbitration Forum decided in 2009 that it would no longer get involved in consumer disputes. So, when the plaintiff’s husband died, and the plaintiff sued the nursing home for negligence and wrongful death, she argued that the contract language requiring arbitration was impossible to comply with, and thus invalid. The district court agreed with her, holding that the case could proceed through the court system as though no arbitration agreement was ever signed.

However, on appeal from the nursing home, the appellate court found that the agreement was enforceable despite the forum being unavailable to arbitrate the dispute, and that the forum-selection language in the agreement was incidental, not central, to the contract. As such, it found that the nursing home did not mean that only the National Arbitration Forum could arbitrate agreements. The plaintiff thus could not sue the nursing home in court, but rather had to go through arbitration with a different arbitrator.

The Effect of an Arbitration Agreement in a Maryland Nursing Home Case

March 13, 2020 | Lebowitz & Mzhen

Generally, when two parties sign an arbitration agreement, they must resolve their claims out of court through the arbitration process. Thus, by signing an arbitration agreement, the resident waives the right to sue the facility in court. Of course, the parties must voluntarily consent to arbitration through an agreement or otherwise. This means that in a Maryland nursing home case, the person bringing the claim must have signed, or be bound by, an arbitration agreement with the facility.

One state’s highest court recently ruled that a family member could not file a wrongful death claim against a nursing home where the resident had an enforceable arbitration agreement with the facility. In that case, a resident’s daughter had power of attorney for her mother. The daughter signed an arbitration agreement for her mother when her mother was admitted to the facility in 2013. Her mother developed bed sores and died after undergoing surgery for the sores. The daughter filed a wrongful death suit against the facility, but the facility argued the claim had to be resolved through arbitration.

The issue in the case was whether the arbitration agreement was enforceable against a family member filing a wrongful death claim. The court found that based on the state’s statute, the state’s interpretation of wrongful death claims, and the decisions of other state courts, the arbitration agreement was enforceable. The court ruled that the state’s wrongful death statute did not supersede the arbitration agreements signed by the residents, and that a resident’s agreement to arbitrate extends to their family members in a wrongful death claim.

Can a Maryland Nursing Home Enforce an Arbitration Agreement Signed by a Loved One?

September 19, 2019 | Lebowitz & Mzhen

Under the current state of the law, Maryland nursing homes can ask potential residents to sign arbitration agreements. Often, these agreements are included in the pre-admission paperwork that must be completed before a resident is admitted. However, there are many issues that an arise affecting the enforceability of an arbitration agreement.

For example, courts have repeatedly held that an arbitration agreement is not valid if one party tells the other they must sign it. Similarly, for the most part, an arbitration agreement must be signed by the resident, because this is the person whose rights the agreement affects. However, routinely, nursing homes do not comply with the procedural and substantive rules governing arbitration agreements, rendering the agreements unenforceable. In a recent opinion, a state appellate court held that an arbitration agreement was unenforceable based on several criteria.

According to the court’s opinion, the plaintiff’s mother was a resident at the defendant nursing home. During her stay, she developed severe skin ulcers that ultimately required the amputation of her leg. The plaintiff’s mother died just a few days after leaving the home, and the plaintiff filed a wrongful death lawsuit against the facility.