Maryland Nursing Home Lawyer Blog

Why Maryland Families Should Not Sign Nursing Home Arbitration Agreements

January 27, 2021 | Lebowitz & Mzhen

Nursing home abuse and neglect is, unfortunately, a rampant problem in Maryland and across the nation. While Maryland state law, recognizing this problem, allows individuals whose loved ones are injured by instances of nursing home abuse and neglect to file a civil negligence lawsuit against the negligent staff or home, many Maryland families may be unwittingly signing away this right. This is because nursing homes may often ask residents or their families to sign an arbitration agreement when the resident moves in. But Maryland residents should always read the fine print of these agreements very carefully and, generally, should avoid signing these arbitration agreements.

Arbitration agreements are essentially contracts stating that if any dispute comes up between the individual and the nursing home, it must be settled through arbitration rather than through a civil negligence lawsuit. Basically, nursing home residents who sign these can be barred from pursuing their case in court. And in most cases, arbitration is not an adequate substitute for having a case heard in court. Arbitration processes do not include a jury, may cap damages to way below what is available in court, and may limit a family’s ability to access or provide evidence of the abuse and neglect their loved one faced. Arbitration is also binding, with very little opportunity to appeal.

How Does Nursing Home Arbitration Work?

Importantly, the arbitrator (the decision maker in the process) is usually chosen by the nursing home, giving them an incentive to decide in favor of the nursing home. Nursing homes tend to like arbitration agreements for all of these reasons, as well as the fact that arbitration processes are covered by strict confidentiality rules, meaning that the nursing home’s abuse and neglect will stay hidden from the public. In contrast, filing a lawsuit against a nursing home provides plaintiffs with all the rights given to them by law, which may include the availability of larger monetary damages, a jury trial, access to more evidence regarding the abuse and neglect, and an impartial decision maker.

COVID-19 Highlights Issues of Neglect in Maryland Nursing Homes

January 20, 2021 | Lebowitz & Mzhen

After the COVID-19 pandemic hit, many families were prevented from visiting their loved ones living in Maryland nursing homes. Visits often serve as a time when families can spend time with their loved ones, and also observe their loved one’s condition in-person. Some advocates claim that there has been a surge in reports of neglect among nursing home residents. Federal data reflects that almost 30 percent of nursing homes report staff shortages now across the United States. Nineteen percent of nursing homes in Maryland report a shortage of nurses and/or aides.

Federal regulations established through the creation of Medicare and Medicaid allow federal oversight of many nursing homes. Even before the pandemic, in surveys conducted from January 2019 through March 2020, 39% of facilities had incidents with suspected or alleged reports of abuse, neglect, or misappropriation of property. Yet, the Centers for Medicare & Medicaid Services (CMS) actually suspended survey activities last March except in some circumstances. More recent guidance allows for survey activities to resume if the state has progressed in its reopening plan or at the state’s discretion. Nursing homes have a responsibility to care for their residents, keep residents safe from harm, and prevent abuse and neglect. Claims can be filed against facilities in cases where nursing homes or staff members have abused or neglected a resident.

Local Group Calls for Reform of Nursing Homes

Can Maryland Nursing Home Arbitration Agreements Be Assigned?

January 13, 2021 | Lebowitz & Mzhen

As arbitration agreements have become routine in many nursing facilities, questions may arise after ownership of the facility has been changed. Like other agreements, Maryland nursing home arbitration agreements can generally be assigned. An assignment of an agreement allows the assignee to “stand in the shoes” of the original party to the contract by granting all the rights the assignor previously had under the agreement.

A recent federal court decision considered whether an arbitration agreement could be enforced against residents after the facility had been transferred to new owners and new agreements had been signed. The case raised issues about when an arbitration agreement is properly assigned and transferred.

In that case, two residents entered a nursing facility in 2019. In April 2019, one resident entered the facility and signed numerous admission documents, including an arbitration agreement, though the agreement was not a condition of admission. The arbitration agreement stated that all claims relating to the resident’s stay were required to be decided through arbitration. In August 2019, the second resident was admitted and signed the same admission documents. In February 2020, the facility was sold and transfer to a new entity. A transfer agreement assigned the new entity as the assignee for certain agreements.

COVID-19 Complicates the Identification and Reporting of Maryland Nursing Home Abuse and Neglect

January 6, 2021 | Lebowitz & Mzhen

One of the reasons that Maryland nursing home abuse and neglect are so horrible is because they can fly under the radar for so long. Nursing home residents who are being abused or neglected may be cognitively impaired and not even understand what is happening to them, or have trouble letting other people know. Unfortunately, the COVID-19 pandemic has only exacerbated this problem, making it even harder for Maryland nursing home abuse and neglect to be identified and investigated.

The COVID-19 pandemic has hit nursing homes particularly hard, and many of them are hot-spots for the virus, with the unfortunate combination of group living and COVID-vulnerable residents. Extra precautions have been taken in many to prevent the spread of infection within the facilities, or from the facilities to the surrounding area. This led to the Centers for Medicare and Medicaid Services to halt on-site visits and surveys to state-run nursing homes, and, in general, investigators and those tasked with monitoring the facilities have not been able to enter nursing homes to respond to complaints.

Additionally, due to the COVID-19 pandemic, many nursing homes have restricted the visiting of residents. Before, family members played an important role in spotting nursing home abuse and neglect—they might notice red flags before anyone else. If they suspected that their loved one was being mishandled, not being given their medicine, or being underfed, they were able to report that concern or ask their loved one about it. But now, with COVID-19 concerns and restricted visiting hours and opportunities, family members may not be able to play this important role, and abuse and neglect might go unseen.

Maryland Nursing Homes Must Continue to Protect Residents as COVID-19 Vaccines Roll Out

December 24, 2020 | justia.admin

Many nursing home residents rightfully rejoiced this week as nursing homes began receiving vaccines for distribution. Long-term care facilities have suffered many of the COVID-19 deaths in the country. At least a third of COVID-19 deaths in the United States have been among residents and employees of nursing homes and other long-term care facilities. There have now been more than 20,000 cases of COVID-19 in Maryland nursing homes, group homes, and assisted living facilities and at least 2,200 resident deaths during the pandemic. Deaths in these facilities have accounted for about half of the state’s death toll.

According to a recent news report, CVS and Walgreens pharmacies are finally beginning to distribute COVID-19 vaccinations this week in the state’s long-term care facilities. Many residents are anxious to get vaccinated and end a long period of isolation from their families. Vaccinations have begun to be administered in facilities just as the conditions in the facilities have deteriorated again. According to the American Health Care Association and National Center for Assisted Living, there have been almost 20,000 cases and about 5,000 deaths per week in recent reports.

However, even as residents and staff are beginning to get vaccinated and celebrate this milestone, Maryland nursing homes and long-term care facilities must still take care not to spread COVID-19 in the facilities by relaxing precautions yet. Vaccinations are voluntary, so most nursing homes likely will not be able to vaccinate all residents and staff. Facilities may also have difficulty obtaining informed consent from patients who lack the capacity to make the decision on their own. Facilities will still have to protect residents who do not get the vaccine. In addition, it is not clear if the vaccine will be 95 percent effective among older people who are more vulnerable to disease in general.

Maryland Nursing Home Neglect and Abuse Can Be Hard to Comprehend, But It Happens All the Time

December 17, 2020 | Lebowitz & Mzhen

It’s hard to believe that Maryland nursing home abuse and neglect occurs. When individuals place their families in a nursing home, they expect that the home and the staff will take care of them, look after them, and keep them safe. Families place loved ones in a facility to be cared for because their aging family member can no longer care for themselves. That is one of the reasons the reality of Maryland nursing home abuse and neglect is so tragic, and it can be difficult for individuals to wrap their minds around.

A recent tragic example of nursing home abuse was reported last month, concerning a 91-year-old disabled woman. According to a local news report, the incident occurred late at night and into the early morning, when one staff member put the resident on the toilet inside of her apartment at 8:20 PM. The staff member instructed another caregiver to put the resident to bed once she was finished. But the caregiver never did. Instead, the resident was left on the toilet. She was not found until more than six hours had passed, around 2:45 AM, at which point she was on the floor. The whole ordeal was captured on video by a camera that her daughter had placed in her room. In the video, the woman could be heard moaning, crying, and repeatedly saying, “help me.” To add insult to injury, the two employees were caught on video surveillance cameras in a dining room, taking selfies for over an hour, according to an arrest report.

In addition, the resident’s daughter told investigators that this was not the first time her mother was left on the floor of her apartment. Once before, her mother had been left for five hours—a concerning pattern.

Maryland Nursing Homes Residents’ Rights

December 11, 2020 | Lebowitz & Mzhen

Nursing home residents may feel as though they have lost the ability to make decisions for themselves and that they have no rights when they enter a facility. This may be particularly true during the COVID-19 pandemic, when many nursing homes have limited the movement of residents and while many facilities struggle to meet resident needs. However, all Maryland nursing home residents have rights and legal protections, even during a pandemic.

Maryland’s Office of Health Care Quality monitors the quality of care in the state’s health care facilities. Under Maryland law, suspected abuse of assisted living residents must be reported to the Office of Health Care Quality. Reports of abuse can be made at 877-402-8219. Maryland’s Department of Health Long Term Care Unit investigates complaints of abuse and assists with the prosecution of abusers.

Under the Code of Maryland Regulation 10.07.09.08, Maryland nursing home residents are afforded some of the following basic rights.

What Will a Change in the White House Mean for Maryland Nursing Home Arbitration Contracts?

December 4, 2020 | Lebowitz & Mzhen

When Joe Biden is sworn into the office of the President of the United States, there are going to be some major changes. Indeed, he and President Trump clashed on many of the most important issues facing the country. However, one very important issue that got relatively little attention was how a Biden administration might impact Maryland nursing home arbitration agreements.

Arbitration is a way for litigants to settle a claim out-of-court. Instead of filing a case in court and letting a judge or jury decide the outcome, in arbitration, a neutral arbitrator hears the evidence and issues a binding decision. While this may seem good in theory, it often works in favor of nursing homes, who get to choose the forum and are intimately familiar with the rules of arbitration. Additionally, there are generally very few ways to appeal an arbitrator’s decision, limiting a resident’s ability to obtain any form of judicial review. For these reasons, and others, many nursing home residents end up at a major disadvantage when they are forced to arbitrate their claims.

During the Obama administration, the Centers for Medicare and Medicaid Services precluded nursing homes from asking residents to sign pre-admission arbitration contracts. The reasoning behind this was that nursing home residents and their families may not be in a position to negotiate the terms of the agreement, and would likely just accept them, even if they are against their interest.

Neglect in Nursing Homes Has Increased During COVID-19 Pandemic, Advocates Say

November 25, 2020 | Lebowitz & Mzhen

Although there has been significant attention given to the risk and prevalence of COVID-19 in nursing homes throughout the pandemic, the pandemic may be the cause other detrimental circumstances suffered by Maryland nursing home residents. According to one news source, advocates say that workers in nursing homes that are overburdened because of the pandemic have not been able to properly care for residents and that many are suffering as a result. Advocates say that there has been a surge of reports of neglect, including residents being left in dirty diapers until their skin peeled off and others with bedsores that cut to the bone. In addition, some residents’ mental health has significantly declined because of their prolonged isolation, which some believed led to their death. One expert estimated that for every two COVID-19 victims in nursing homes, another died prematurely due to other causes.

The numbers suggest that other residents who were lucky enough not to contract COVID-19, were also impacted—as staff attended to infected residents or because staff members were absent because they were infected themselves. A 75-year-old man became so malnourished and dehydrated that his weight dropped to 98 pounds. There were signs of an untreated urinary infection, poor hygiene, and that he was not getting the help he needed to eat. His son claims that the nursing home abandoned his father. An 83-year-old woman in another nursing home died from dehydration, according to her daughter. As COVID-19 spread throughout her facility, while she did not contract COVID-19 herself, staff members failed to ensure she was drinking enough fluids. Federal data reveals that almost 1 in 4 nursing homes report staff shortages now in 20 states.

What Rights to Maryland Nursing Home Residents Have?

A Maryland nursing home resident has the right to be free from abuse and neglect and live in a safe facility. A Maryland nursing home claim can be filed in cases where nursing homes or their staff have abused or neglected a resident. Some potential signs of abuse and neglect are bedsores, unexplained injuries, insufficient funds, and fear of certain persons. Signs of neglect may include poor personal hygiene, lack of mobility, unexplained injuries, unsanitary living conditions and inadequate security, physical symptoms from lack of nutrition, and psychological issues, including anger, resentment, and depression.

Maryland Nursing Home Abuse and Neglect May Go Unnoticed In Many Facilities

November 24, 2020 | Lebowitz & Mzhen

Abuse and neglect can, unfortunately, run rampant in Maryland nursing homes, putting residents in danger of serious injuries, illness, or even death. Oftentimes, incidents of abuse and neglect may go unnoticed or unreported, and residents or families of residents may have no idea of the extent of the problem. If, for example, 20 residents are all being abused or neglected in subtle ways not recognized by their families, family members may think their loved ones are in a safe facility and well taken care of when in reality they are not. Even if individual family members realize that their loved one is being harmed, they may assume that it is an isolated incident, or chalk it up to an accident. This is one of the key reasons that nursing home abuse and neglect in Maryland nursing homes can go on for so long and cause so much harm.

According to a recent news report, a group of about 15 people gathered outside a nursing home decided to speak out against the alleged abuse and neglect that their loved ones suffered during their time at the facility. The group believes that the situation is a crisis. For example, one woman’s father claims he was punched by a nursing home staff member. His family also found multiple bruises going up and down his body, which suggested that he was carelessly slung into a wheelchair. In addition, family members believe that residents are not being fed properly. One woman told reporters that her father lost almost 50 pounds, and that she believed “they are not feeding these people. They are starving them.” Another woman reports that her 76-year-old mother, who uses a wheelchair, has had three major falls in just seven months, including one where she broke her femur.

How Can You Detect Nursing Home Abuse?

As explained above, it can be difficult for families to uncover nursing home abuse and neglect. But when they uncover these tragic and alarming instances, state law allows them to hold the nursing home accountable through a Maryland personal injury lawsuit. These lawsuits can be incredibly valuable for victims of abuse and neglect and for their families. If successful, they can result in large monetary amounts awarded to the plaintiffs to cover the harm that was caused, including for medical expenses, pain and suffering, or even funeral and burial costs if the resident dies.