Maryland Nursing Home Lawyer Blog

Federal Government Expands Regulations to Protect Nursing Home Patients from Other Types of Abuse

August 19, 2016 | Lebowitz & Mzhen

The federal government has recently announced plans for new regulations that will crack down on the problem of residents being abused by nursing home employees. Specifically, the new regulations are designed to target a recently occurring problem of nursing home employees taking demeaning photographs and videos of residents and sharing them on social media sites. Recently published articles by a patient advocacy group have documented the worsening phenomenon and the federal response.

The Federal Government Can Use Medicare to Urge States and Nursing Homes to Prevent Abuse

Most nursing homes are administered by private organizations or state or municipal governments, but the federal government contributes to the costs for each resident in a vast majority of those homes in the form of Medicare payments made on the resident’s behalf. Although the federal government generally lacks direct regulatory authority to compel state or privately run nursing homes to implement certain policies, it can tie compliance with anti-abuse policies into the nursing home’s receipt of Medicare funds, which often comprise most of the payments the nursing homes receive.

Sexual Abuse of Nursing Home Patients Remains a Serious Problem

August 12, 2016 | Lebowitz & Mzhen

The problem of sexual abuse committed against nursing home patients by employees or medical providers continues to surprise authorities and victims’ families, who often discover that a loved one has been victimized for an extended period of time before any action is taken. For various reasons, elderly victims in nursing homes are less likely than other victims to report sexual abuse to their families or authorities, and it may take an abuser being caught in the act for authorities to be notified. A New York nursing home employee recently pleaded guilty to abusing a 99-year-old nursing home resident in an act that was witnessed by another employee and may not have been reported otherwise.

After the Abuse Was Discovered, Criminal Charges Were Pursued by State Attorneys

According to a local news report discussing the criminal case proceedings, the perpetrator was a certified nursing assistant who was employed by the nursing home to provide care for the victim and other residents. The report states that on several dates in April 2016, the man placed one resident in a bathroom, while he abused his victim in the attached bedroom.

One of the acts of abuse was discovered by another nursing home employee who entered the bedroom. Authorities were subsequently notified, and they arrested the perpetrator, who admitted other instances of abuse and later pleaded guilty to an 11-count felony indictment filed on the matter.

Nursing Home Arbitration Clauses May Punish Patients and Families For Expecting Quality Care

August 5, 2016 | Lebowitz & Mzhen

Arbitration clauses have become more and more common in many types of contracts between consumers and businesses over the last 50 years, However, the dramatic increase in the use of arbitration clauses in medical care agreements should be of special concern to consumers and their advocates. By agreeing to an arbitration clause, a patient or their family may be giving up their right to sue the other party in state or federal court and instead assenting to resolve disputes through what is known as binding arbitration. Binding arbitration is a process that closely resembles a judicial proceeding, although the “judge” of an arbitrated dispute is simply a private party, and the court rules and procedures that are used in judicial proceedings may not apply.

Why Do Providers Propose Binding Arbitration, and Why Would Consumers Agree to It?

Binding arbitration is promoted by companies and industry groups as a simplified way of resolving disputes that could get out of hand if they were processed through a full-fledged judicial proceeding. Complainants are legally entitled to a fair process through arbitration, and state and federal laws are applied to their claims.

In reality, the differences between an arbitration proceeding and a judicial proceeding almost always favor the large company, with consumers and patients receiving the short end of the agreement. A recent New York Times article discussing the use of arbitration agreements in nursing home contracts notes that although agreeing to binding arbitration cannot be mandatory for a prospective patient, the agreements are often structured to hide that fact. Many consumers agree to arbitrating potential disputes because they don’t know they have the right to refuse it.

Increasing Use of Social Media Has Resulted in Unexpected Nursing Home Abuse

July 26, 2016 | Lebowitz & Mzhen

A recently published news article discusses the difficulty that law enforcement and regulatory authorities have been facing nationwide in attempting to apply existing laws to curb the increasing pattern of “social media abuse” of long-term care and nursing home residents by health care workers. According to the article, there have been dozens of reported instances in which health care workers publish explicit photos or videos of nursing home patients on social media. The resulting posts have been offensive, hurtful, and exploitative of the nursing home patients, and they demonstrate the unprofessional levels of care that some nursing facilities provide.

Current Laws Addressing Nursing Home Abuse May Not Go Far Enough

According to a recently published report noted in the article, current laws in many states protect nursing home patients from social media abuse by making it illegal for a health care worker or assistant to post an image containing a resident’s genitals on social media. Unfortunately, many of the abusive and humiliating posts that have been made don’t include an image of a patient’s genitals but remain extremely offensive. One such post mentioned in the article included an image of an elderly resident’s hands and legs covered in feces, accompanied by a caption that contained profanity and made fun of the man.

Court Holds Family Member of Nursing Home Resident Cannot Consent to Arbitration Unless Resident Is Deemed Incompetent by Primary Care Physician

July 19, 2016 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of Mississippi issued an interesting opinion for anyone who signed an arbitration clause when admitting their loved one to a nursing home. In the case, Tarvin v. CLC of Jackson, the court determined that the arbitration clause signed by the plaintiff on behalf of her elderly father was not binding because she did not have the legal right to waive her father’s rights, absent a determination of his incompetency.

Arbitration Clauses in Nursing Home Contracts

Whenever a party enters into a contract, they try to include as many favorable terms as possible. However, sometimes nursing homes can overreach, including arbitration clauses that may act to prevent the resident from using the court system to adjudicate any disputes between the parties. Indeed, if an arbitration clause is valid, the parties are required to go to arbitration instead of filing a lawsuit. This can have negative effects on plaintiffs, since usually the nursing home selects which arbitrator to use, giving rise to potential favoritism.

Arbitration clauses, however, are not always valid. In fact, in Tarvin, the court held that the arbitration clause at issue could not be enforced. The court explained that a nursing home resident’s right to use the court system is an important one, and it cannot be waived by just anyone. The court explained that it is only when a resident is deemed incompetent that a loved one can validly sign a binding arbitration agreement. In the Tarvin case, the doctor who determined the plaintiff’s father was incompetent was not his primary care provider. Thus, the court held that there was insufficient evidence proving the elderly man’s incompetence, and he did not validly consent to arbitration through his daughter.

Plaintiff’s Failure to Produce Expert’s Report in a Timely Manner Results in Early Dismissal

July 12, 2016 | Lebowitz & Mzhen

Earlier this month, a state appellate court issued a written opinion in a wrongful death case brought by the loved one of a nursing home resident whom the plaintiff claims was neglected prior to her death. In the case, Handy v. Madison County Nursing Home, the plaintiff’s claims were ultimately dismissed by the court during a summary judgment proceeding because the plaintiff failed to meet her initial burden to show that a prima facie case existed against the nursing home.

The Facts of the Case

The plaintiff filed a wrongful death lawsuit against the nursing home that had cared for her mother in the three years leading up to her death. In her complaint, the plaintiff alleged that nursing home staff members were negligent in failing to detect a bowel obstruction that ultimately contributed to her mother’s early death. As a part of her case, the plaintiff attached a certification explaining that, if called to testify, her expert witness would explain that the defendant nursing home violated a standard of care it owed to her mother.

In a pre-trial summary judgment proceeding, the nursing home asked the court to dismiss the case based on the fact that the plaintiff failed to produce evidence of the home’s negligence. Specifically, the nursing home argued that the certification was not sufficient to prove negligence and that an expert’s affidavit was necessary. The plaintiff sought several continuances and failed to provide an expert’s affidavit at each scheduled listing. Eventually, the nursing home asked the court to dismiss the case based on a lack of evidence.

Intellectually Disabled Nursing Home Residents Are at an Increased Risk of Suffering Abuse or Neglect

July 5, 2016 | Lebowitz & Mzhen

While nursing homes are charged with the duty to care for each of their many residents, the reality is that not all nursing homes take that duty to heart. In fact, almost all nursing homes are for-profit enterprises that, at the end of the day, must account for the costs of labor, supplies, and other expenses. Such an influence may incentivize nursing home management to cut corners in relation to the quality of care they provide the residents in their care.

This may be nowhere more true than in the case of intellectually disabled nursing home residents, who for one reason or another suffer from nursing home abuse and neglect at higher rates than non-intellectually disabled residents. Indeed, according to one news article reporting on the plight of intellectually disabled nursing home residents, several states are currently facing lawsuits based on the inadequate services provided to these individuals.

Evidently, a federal judge in San Antonio, Texas recently granted class-action status to a group of nearly 4,000 intellectually disabled nursing home residents across the state. The allegations in that case are that the State of Texas has done little if anything to secure a safe place for these individuals, often placing them in homes that are patently unequipped to handle the residents’ needs.

Court Improperly Failed to Allow Nursing Home Plaintiff to Name Additional Defendants Later Discovered to Be Involved in Key Decision-Making Roles

June 28, 2016 | Lebowitz & Mzhen

Earlier this month, an Oklahoma court issued an opinion in a case brought by the surviving family members of a woman who died in a nursing home while in the defendants’ control. The case, Maree v. Neuwirth, involved the plaintiffs’ decision to add additional defendants to the lawsuit after they discovered that these parties may have had a key role in the decision-making leading up to their loved one’s death. The court hearing the case held that it was improper for the lower court to deny the plaintiffs the ability to add these defendants.

The Facts of the Case

Back in January 2011, the elderly loved one of the plaintiffs fell while a resident at the defendant nursing home. Two days later, she died in the hospital. It was alleged that the elderly woman’s injuries were worsened because nursing home staff failed to respond to a “call light” in a timely manner.

The woman’s loved ones filed a lawsuit against the nursing home about two years after the alleged act of negligence. Initially, the lawsuit was filed against most of the nursing home’s management, as well as against the nursing home itself.

A Nursing Home’s Responsibility to Prevent Resident-On-Resident Abuse

June 21, 2016 | Lebowitz & Mzhen

It used to be that when the term “nursing home abuse” was mentioned, the mostly likely culprit engaging in the abuse was a staff member of the nursing home. However, according to a recent news report, that may be changing. Evidently, the Annals of Internal Medicine recently commissioned a study of 10 New York nursing homes to see the rates at which residents are engaging in abusive behaviors among themselves. The results were shocking.

According to the study, about 20% of all nursing home residents reported that they suffered some kind of abuse caused by another resident. Most of the abuse was verbal, consisting of threats, swearing, or belittling, but there was a significant amount of physical and sexual abuse that was found. In fact, according to the report, 5% of nursing home residents reported suffering physical abuse, and 0.6% reported being sexually abused by another resident.

The study notes that the lesser forms of abuse are precursors to the more serious types of abuse, and it is imperative that nursing home staff intervene before the pattern of abuse between two given patients escalates. The study also found that residents suffering from dementia or those who were placed in a facility with a high patient-to-staff ratio were more likely to be victimized by another resident.

What a Rapid Deterioration of a Loved One’s Condition May Mean

June 14, 2016 | Lebowitz & Mzhen

Nursing homes are a necessity in today’s busy society. With so many dual-income households, and the advancement of complex medical technology, it becomes difficult if not impossible to care for aging loved ones as they require more and more assistance. When aging loved ones reach a point in their lives at which they need constant care, a nursing home is one of the few options available.

Generally speaking, nursing homes are not known for the quality of care they provide the elderly. With daily reports of abuse and neglect, it is difficult to find a satisfactory home in which to place a loved one. However, ultimately a home must be selected.

When an elderly loved one is placed into a nursing home, it may be tempting to think that any deterioration of their condition is due to their new surroundings. After all, they are no longer in the comfort of their own home, and they may not be operating on their own schedule any longer. To be sure, this may cause some discomfort at first. However, assuming that a rapid deterioration in a loved one’s health is due to their new environment is a mistake that may cost an elderly loved one dearly, since often a rapid deterioration in health is a sign of nursing home neglect.