Maryland Nursing Home Lawyer Blog

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.

Prosecutors Decline Criminal Charges in Nursing Home Beating Death

October 21, 2016 | Lebowitz & Mzhen

According to a recent news report, an 84-year-old nursing home resident will not face criminal charges after an 82-year-old woman has died following a violent beating inflicted by the man. The attack occurred on a morning in late August of this year, after the woman mistakenly wandered into the man’s bedroom in the dementia unit of a New York nursing facility. The assailant violently attacked the woman, who died after suffering a broken neck, broken ribs, a broken nose, and several facial fractures. The county attorney’s office declined to press charges against the man, finding that he suffered from dementia and lacked the mental capacity to stand trial for the crime.

Civil Liability for Violence Committed by Nursing Home Residents

Although the resident will not be charged for his role in the violent death of his fellow resident, the deceased woman’s family may be entitled to compensation for the loss of their loved one. The prosecutor’s decision not to press criminal charges against the perpetrator would not prevent a wrongful death claim from being brought against the man in civil court, although his mental state would still be relevant in a potential claim. In addition to the perpetrator, the nursing home facility and staff could face civil liability for the woman’s death through a nursing home abuse or neglect lawsuit.

Nursing homes have a responsibility to maintain a reasonably safe environment for their residents, which may include a duty to protect residents from acts of violence by other residents. Residents with psychological or mental health issues should be diagnosed and adequately supervised to protect the safety of themselves and other residents. Some residents may need assistance returning to their rooms. Although not every random act of violence may be preventable, nursing home attendants should be available to respond quickly in the event of any emergency or injury, whether accidental or intentional.

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.”

Nursing Home Resident Dies After Developing Gangrene from Untreated Bedsores

October 7, 2016 | Lebowitz & Mzhen

A recently published news report discusses the tragic story of an 88-year-old man who passed away in August 2015 after developing gangrene in two improperly untreated pressure wounds, or bedsores, that significantly worsened while he was living at a nursing home. According to the report, the deceased man’s daughter-in-law discovered the wounds while visiting her father at the nursing facility and requested that he be taken by ambulance to a hospital for immediate treatment. Despite the request, the nursing home staff refused, insisting the wounds were minor and manageable. Against the advice of the nurses and employees at the nursing home, the resident’s daughter took him to the hospital herself.

The Man Was Not Hospitalized Soon Enough and Succumbed to a Gangrene Infection

Although his daughter took matters into her own hands and hospitalized the man after she discovered what appeared to be severely infected pressure wounds, the action was not taken soon enough to save his life. By the time the man arrived to the hospital, the infection had taken over, and his organs were shutting down. He passed away shortly after he was admitted. Seeking answers and compensation for the apparent negligence of the nursing home, the man’s daughter pursued elder abuse and nursing home neglect claims against the nursing facility. According to the report, the daughter alleged that the medical professionals and support staff at the nursing home failed to properly prevent, diagnose, or treat his condition, ultimately resulting in his death.

The Importance of Pre-Employment Screening of Nursing Home Employees

September 30, 2016 | Lebowitz & Mzhen

When someone can no longer care for themselves, and their loved ones are also incapable of providing the necessary level of care, many families turn to nursing homes. Nursing homes are charged with caring for those who cannot fully care for themselves, and the duties that come along with this are varied and often depend on the condition of each individual resident. However, some duties are present no matter the condition the resident is in, including providing a safe environment that is free of abusive and neglectful staff.

One way that nursing homes are able to ensure the quality of the nurses whom they employ is through pre-employment and background checks. These checks look into the past of the applicant nurse to determine which other positions the nurse has held, whether there have been any disciplinary actions taken against the nurse, and whether the nurse has any past criminal convictions. Not only are these types of checks legal, but also they are necessary to ensure a safe nursing home for all residents.

Investigation into Nursing Home Abuse Discovers Management Did Not Perform Pre-Employment Background Checks

Earlier last year, nursing home aides at a New York nursing facility taunted an elderly resident and then took pictures of the abuse. After the discovery of this behavior, an official investigation was conducted, which revealed that the nursing home employing the aides had failed to conduct pre-employment background checks on four of its newly hired employees. It was also discovered that the nursing home failed to provide any abuse prevention training and even failed to follow up on reported cases of abuse. According to a recent news article discussing the facility’s deficiencies, the nursing home has a one-star rating and had 24 deficiencies total in 2015 and 2016. This amounts to more than four times the state average.

Nursing Home Resident Kills Fellow Resident in Shooting, Later Commits Suicide

September 23, 2016 | Lebowitz & Mzhen

A 77-year-old Wyoming nursing home resident and one other person are dead, and three others injured, after a shooting occurred near the nursing home where the perpetrator lived. A local news report was recently published describing the shooting, which began at about 11:00 AM on Wednesday, September 14, outside the nursing facility. The condition and identities of the injured victims have not been released to the public, but the perpetrator, who turned the gun on himself after initially fleeing the scene of the shooting, was identified as a 77-year-old resident of an apartment complex adjacent to the nursing facility.

It Is Not Clear If Personal or Mental Health Issues Led to the Shooting

According to the news report from the scene of the fatal shooting, there may have been personal issues behind the man’s motivation to commit the shooting, although there were conflicting reports of what happened. It is possible that the perpetrator suffered from a mental health condition and should not have been in possession of a firearm in the days and hours leading up to the shooting.

Nursing Home Resident Chokes and Dies While Chewing Food Without Dentures

September 16, 2016 | Lebowitz & Mzhen

According to a recent article, a resident at a nursing home in New York died after choking on a grilled cheese sandwich provided by nursing home staff. The women had been diagnosed with dementia and required dentures to chew her food, but she was not wearing her dentures at the time she choked on the sandwich. The woman’s son is suing the nursing home for damages due to negligence on the part of nursing home staff.

As Americans live longer and the population continues to age, more and more adults find themselves moving into assisted-living facilities or nursing homes. These facilities provide a wide range of services, including medical care, food services, and assistance with many activities of daily living, like taking a shower, getting dressed, and using the toilet.

Providing such a wide range of services comes with responsibility. In Maryland, nursing homes and assisted living providers must take reasonable care when providing these services, and a failure to take such care is considered negligence. When negligence is committed, residents or their family members may be eligible for compensation for injuries suffered as a result of the negligence.

Deceased Woman’s Family Files Wrongful Death Claim Against Nursing Facility

September 9, 2016 | Lebowitz & Mzhen

The executor of a deceased former resident’s estate has filed a wrongful death claim against a Chicago area nursing home on behalf of the woman’s surviving family members. According to a local news source, the family is seeking damages for the woman’s wrongful death, which was allegedly caused by the negligence of the employees and management of the nursing facility where she died. The lawsuit was filed on August 10 in Illinois state court and is seeking over $50,000 in damages, according to the news source.

The Plaintiffs Allege that the Defendants Failed to Adequately Supervise the Condition of the Deceased Resident

The plaintiffs in the case of Rodriguez v. Aperion Care International are the surviving family members of a woman who died earlier this year while living at a nursing home facility operated by the defendants. According to the allegations discussed in the news article, the woman died after suffering from skin breakdown and pressure ulcers that she developed while bedridden at the defendant’s facility. These conditions, which allegedly led to her death, are commonly known as bedsores and are generally preventable if residents are cared for properly.

50-Year-Old Former Nursing Home Employee Charged With Sexually Abusing Six Disabled Residents

August 26, 2016 | Lebowitz & Mzhen

A 50-year-old New York man has been charged with multiple felonies after authorities confirmed allegations that he sexually abused at least six disabled residents at a nursing home facility where he was employed. The charges were discussed in a recently published local news report, which stated that the man has been indicted on 33 felony charges based on the alleged abuse, which occurred over a six-month period in 2014 and 2015 at the nursing home where he was employed as a counselor to care for the residents.

The Alleged Perpetrator Used His Trusted Position to Abuse Several Patients

According to a summary of the allegations that is contained in the article, the defendant was employed as a counselor at the nursing facility in upstate New York and began abusing the residents in July 2014. The man’s victims were six residents of the facility who had all previously suffered traumatic brain injuries and were initially unable to report the repeated acts of abuse, some of which allegedly occurred while the victims were asleep or incapacitated. The defendant is said to have used his position as a counselor and caretaker to gain access to the residents and forcibly perform sexual acts on them. If the man is convicted of all of the charges brought against him, he could face 10 years in prison.