Maryland Nursing Home Lawyer Blog

Maryland Nursing Homes Residents Suffering from COVID-19 at Alarming Rates

May 19, 2020 | Lebowitz & Mzhen

Maryland’s confirmed COVID-19 cases among residents in Maryland nursing homes and assisted-living facilities have continued to rise over the past weeks. As of May 16, 2020, there are now 5,329 confirmed resident cases and 984 confirmed resident deaths in the state. As cases grow, stories of neglect and substandard care in facilities have also continued.

In one nursing home in northern New Jersey, at least 53 residents have died from COVID-19. According to one news source, the nursing home, Andover Subacute and Rehabilitation Center II, had one of the largest outbreaks in the state, one of the hardest hit in the nation. Federal and state inspectors began investigating the 543-bed facility after police found 17 bodies piled in a morgue after receiving an anonymous tip that a corpse was stored in a shed. A federal inspection report was released detailing the state of the nursing home, which shows how the pandemic has overtaken nursing homes across the United States. The report’s findings include that one patient was found dead in bed after suffering from a high fever for days—after staff failed to notify a doctor of the patient’s fever. In addition, sick residents who were tested for coronavirus and waiting for the results were not quarantined away from healthy residents. Also, thermometers that employees used to take their temperatures at the beginning of each shift did not work. The report found that the nursing home put its residents in “immediate jeopardy” and the facility was fined $220,000.

The National Guard was called after the facility failed to adequately staff and protect staff and residents. The National Guard members were called in to clean and disinfect the facility. Residents had complained that clothing and bed sheets had not been washed. The facility is temporarily barred from accepting new patients and the facility will continue to accrue penalties until it addresses the issues in the report.

Maryland Nursing Homes Ask For Immunity from COVID-19 Lawsuits

May 13, 2020 | Lebowitz & Mzhen

Healthcare providers across the United States continue to grapple with challenges related to providing care to patients suffering from COVID-19, otherwise known as the novel coronavirus. Almost 60% of COVID-19 victims in Maryland are long-term care and nursing home residents. In response to the disproportionately high rate of infection in nursing homes, many states, including Maryland, have asked lawmakers to provide nursing facilities with immunity from lawsuits related to their care during the pandemic. Despite the inherent difficulties many residents and their families face pursuing lawsuits against negligent nursing homes, these facilities continue to push for additional protections against liability.

Even though the spread of disease and illness can become challenging to control, these entities have a responsibility to provide their residents and visitors with a safe environment and appropriate treatment. This includes ensuring that their staff is trained in proper hygiene and safety practices, providing staff and residents with protective gear, quickly diagnosing and identifying patients suffering from infectious diseases, and notifying visitors of any changes in visitation protocol. Despite these steps, outbreaks can still occur, and these facilities must have a plan in place to combat these instances. Infection control protocols include implementing stricter sanitation requirements, changing safety equipment requirements, and isolating high-risk or infected residents. The failure to respond to an outbreak effectively can result in deadly consequences for residents and staff.

Many families are beginning to file lawsuits against these facilities for their response to the COVID-19 outbreak. In response, many Maryland nursing home groups are asking the state to provide immunity based on the governor’s emergency declaration. A few states, including Maryland, protect providers during state and national emergencies. Nursing homes are anticipating that many lawsuits will include claims that the facilities did not have enough personal protective equipment (PPE) to protect their staff and residents. However, many residents and families are claiming that a lack of PPE is only one problem of many, and that clinicians and staff failed to diagnose and treat their loved ones quickly.

Maryland Orders Officials to Provide Detailed Info on COVID-19 Nursing Home Cases

May 5, 2020 | Lebowitz & Mzhen

According to a recent news report, Maryland Governor Larry Hogan has directed state officials to provide detailed information on COVID-19 cases in Maryland nursing homes and assisted-living facilities and is adding two additional drive-thru COVID-19 testing sites in the state. As of May 2, there are over 24,000 confirmed cases in the state of Maryland, and 1,156 COVID-19 deaths. Maryland currently has the 12^th highest rate of COVID-19 cases per capita and the 10^th highest death rate per capita in the country. The highest number of cases are in Prince George’s County (7,041), followed by Montgomery County (4,919).

The state maintains a coronavirus resource webpage and has recently begun to publish data on COVID-19 cases in nursing homes and other assisted-living facilities in individual facilities in each county in Maryland. In nursing homes, assisted living homes, and group homes in the state there are now 3,218 confirmed resident cases, 525 resident deaths, 1,489 staff cases, and 8 staff deaths. Right now, Montgomery County has the highest number of total COVID-19 cases in nursing homes, assisted living homes, and group homes. In Montgomery County, there have been 717 confirmed resident cases, 382 confirmed staff cases, 148 resident deaths, and 1 confirmed staff death.

Examples of case information for certain facilities are as follows:

Manor Care Silver Spring: 58 resident cases, 17 staff cases, and 16 resident deaths
Regency Care of Silver Spring: 50 resident cases, 30 staff cases, and 10 resident deaths
Rockville Nursing Home: 36 resident cases, 15 staff cases, and 13 resident deaths
Wilson Health Care Center at Asbury Methodist Village: 47 resident cases, 16 staff cases, and 12 resident deaths
Brighton Gardens of Tuckerman Lane: 24 resident cases, 16 staff cases, and 8 resident deaths
Montgomery Village Health Care Center had 32 resident cases, 11 staff cases, and 8 resident deaths

In addition to five drive-thru testing sites in Bel Air, Columbia, Glen Burnie, Waldorf, and White Oak, the state is adding two additional sites in Owings Mills and Prince Frederick. However, tests are offered only to people who have symptoms and are at high risk for complications from COVID-19—and only for those with an appointment and with an order from a health care provider.
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Maryland Nursing Homes Fail to Disclose COVID-19 Outbreaks

April 27, 2020 | Lebowitz & Mzhen

Despite the concerning rate of COVID-19 (coronavirus) deaths, a recent news report indicates that officials are refusing to provide the public with a comprehensive and accurate list of Maryland nursing homes and long-term facilities where outbreaks have been confirmed. Many nursing home administrators, staff, and residents at these facilities remain in the dark about the presence of the infection at their facilities. Maryland Department of Health officials advised investigators and reporters that public disclosure was up to the local health department. However, many local health departments declined to release the names of affected facilities, reasoning that they need authorization from the state to share the information. This lack of transparency has added to the public’s fear and confusion about how to protect themselves and their loved ones. Maryland nursing homes that fail to engage in appropriate disease prevention practices and do not provide the public with crucial health and safety information may be liable for the spread of disease at their facilities.

Maryland nursing homes and long-term care facilities must limit the spread of disease and infection by taking precautions and acting quickly when an outbreak emerges. It is especially important because nursing home populations are at the highest risk of being affected by COVID-19. The Centers for Disease Control and Prevention (CDC) provides these facilities with guidance on how to keep COVID-19 from entering their facilities, identifying infections, preventing the spread of COVID-19, accessing personal protective equipment, and managing severe illnesses.

The guidelines make it clear that one of the most critical components of disease control is providing residents and staff with information about the disease. Staff and residents should receive education and training about signs, symptoms, and potential outbreaks. Further, residents and families should have information about what the facility is doing to protect their loved ones. Some common ways to limit the spread of disease are restricting visitors, reinforcing adherence to infection prevention, and implementing non-punitive, flexible sick policies for staff. These Maryland facilities must act swiftly to implement all of these recommendations before cases are identified at their locations. Maryland nursing homes that fail to engage in these safe practices and refuse to provide this crucial information may leave their residents and staff vulnerable to exposure and severe illness.

Maryland Causes of Action in COVID-19 Nursing Home Cases

April 20, 2020 | Lebowitz & Mzhen

There are different causes of action that an individual may be able to bring in a COVID-19 Maryland nursing home case, depending on the circumstances. Causes of action in a Maryland nursing home case can include negligence, wrongful death, battery, false imprisonment and infliction of emotional distress.

Negligence is among the most common causes of action. Generally, in a Maryland negligence claim, a plaintiff must show that a defendant owed the plaintiff a duty, the defendant breached that duty, the plaintiff suffered an injury or loss, and the damages proximately resulted from the defendant’s breach of the duty. In a Maryland nursing home case, a nursing home may be liable for negligence if the home was negligent in caring for the resident, in failing to keep the resident safe, or in another way. For example, failing to segregate a positive COVID-19 resident, to inform other residents, to test symptomatic residents, or to require staff to wear protective gowns and masks might be potential cases of negligence.

Wrongful death claims are another common cause of action in nursing home cases. In the tragic event of the death of a nursing home resident, a nursing home may be liable for the wrongful death of the resident. Wrongful death claims brought under Maryland’s Wrongful Death Act allow claims against a defendant “whose wrongful act causes the death of another.” In COVID-19 cases, these claims would likely be brought for similar reasons as a negligence claim.

The Severability of Arbitration Agreements in Maryland Nursing Home Abuse Cases

April 13, 2020 | Lebowitz & Mzhen

Every year, more and more Maryland residents are moving into nursing homes. As the population ages and life expectancy rises, nursing homes are supposed to provide a safe environment for those who can no longer care for themselves. Unfortunately, however, instances of nursing home abuse and neglect still occur in Maryland facilities and can result in serious injuries or even death for the residents. Acknowledging the pain and suffering these incidents can cause, Maryland state law allows injured victims or their families to sue a negligent nursing home to recover for their injuries. However, what some residents might not realize is that they may sign away their right to sue when signing the initial agreement forms with the nursing home.

Arbitration agreements are common among nursing home agreements, and oftentimes are signed without the resident even reading or understanding what they say. When signed, arbitration agreements can prevent a resident from suing the nursing home in court. If there is a dispute, the resident is forced to settle it through a confidential arbitration process, with no ability to appeal. Nursing homes prefer arbitration because it is faster, cheaper, and the proceedings are confidential, meaning they are less likely to suffer reputational harm. However, most residents are shocked to find out they signed away their right to a day in court.

Sometimes, injured residents who hope to sue a nursing home may attempt to invalidate their contract with the nursing home as a whole. Their strategy is that if the contract as a whole is invalid, then the arbitration agreement is as well. However, that strategy does not always work because a court might find that different clauses in the contract are severable, meaning that they are enforceable on their own.

Maryland Confirms Coronavirus Cases in Nursing Homes

April 7, 2020 | Lebowitz & Mzhen

As the coronavirus continues to spread across the United States, officials are tracking cases in nursing homes, where residents are at a heightened risk. According to a recent report, state officials have now reported at least 60 Maryland nursing homes and senior living facilities have confirmed coronavirus cases in the state. There have been six deaths at one facility in Mount Airy. Health officials have reported that 147 nursing homes across 27 states have at least one resident with coronavirus, according to one news report.

The Centers for Disease Control and Centers for Medicare and Medicaid Services looked into the high fatality rate at the Life Care Center nursing home in Kirkland, Washington, where at least 35 residents or staff have died from the virus. CMS found that the center failed to quickly identify and manage sick residents, notify the state’s health department about the rate of respiratory infection among its residents, and failed to have an adequate backup plan when the facility’s primary clinician became sick.

Seniors are at a greater risk because they are more susceptible to complications from the virus, a CMS administrator said in a statement. People over 65 years old are at a high risk of serious illness and death from the virus, according to the CDC. CMS said it would enhance its inspection process for nursing homes in light of its findings.

Federal Government Attempts to Weaken Maryland Nursing Home Regulations Regarding Infectious Diseases

March 27, 2020 | Lebowitz & Mzhen

Nursing homes fill an important role in today’s society; as the population ages and life expectancy increases, more and more Americans are placing their loved ones in nursing homes to care for them when they are no longer able to care for themselves. Unfortunately, not all nursing homes are safe for residents, and sometimes residents may suffer abuse or neglect from the individuals tasked with caring for them. While the federal government has regulations governing nursing homes and standards of care, the current administration has recently attempted to loosen these regulations, causing concern for Maryland nursing home residents.

The proposal to relax regulations governing nursing homes was introduced in July of 2019 but has been drawing particular attention recently due to the coronavirus. According to an article in the New York Times, the federal government’s proposed changes would loosen regulations established during the Obama administration meant to curb deadly infections and diseases in nursing homes. Specifically, the rule would eliminate the requirement that nursing homes employ at least one specialist in preventing infections. Infection-prevention specialists are currently supposed to be at all nursing homes in the country, ensuring that employees are washing their hands and following other safety procedures. Their role is considered especially important when considering that, every year, about 380,000 nursing home residents are killed by infections.

While this proposed change is of concern even without the current pandemic, the coronavirus illustrates the vulnerability of nursing homes to infectious diseases. For example, one nursing home in Washington state has lost 13 residents to coronavirus, and dozens of other residents and employees have gotten ill. National reports indicate that the elderly are particularly susceptible to the coronavirus, with a significantly higher death rate than the general public. Additionally, those living in nursing homes are less able to practice social distancing, increasing their risk. Thus, advocates are urging the federal government to withdraw the proposed changes, which could lead to increased medical neglect, less infection control, and more illnesses and deaths in nursing home populations.

Protecting Maryland Nursing Home Residents During the Coronavirus Outbreak

March 20, 2020 | Lebowitz & Mzhen

Individuals across the world are beginning to experience the devastating impact of Covid-19, commonly known as the novel coronavirus. The new strain of the virus has been identified in every state and is linked to the death of over 150 U.S. residents. Out of these deaths, at least 40 are connected to a single nursing center in Washington, and residents of other long-term care facilities. The widespread exposure throughout these nursing facilities shines a light on the fundamental problems nursing homes have containing the spread of disease. Maryland nursing homes should take the necessary precautions to limit the spread of these types of fast-spreading diseases and infections.

The coronavirus shares some similarities to the flu in that it quickly spreads through person-to-person contact or through respiratory droplets. Further, although the flu can be severe and have high rates of mortality, experts have years of studying the flu and generally know what to expect each season. In contrast, relatively little is known about the new virus and the diseases it causes. However, it is clear that, like the flu, the disease is highly contagious and spreads quickly.

Maryland nursing homes should follow the Center for Disease Control (CDC) recommendations for preventing the spread of disease. These diseases thrive and spread quickly in confined spaces, such as, assisted-living facilities and long-term care facilities. Healthcare workers must follow strict procedures to prevent serious illnesses, injuries, and deaths to their residents. Nursing home workers should practice proper hand hygiene, wear protective equipment, restrict visitors from contacting infected patients, and prevent infected healthcare staff from contacting patients. Nursing homes that do not engage in these practices may be responsible for the spread and consequences of a virus.

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.