Maryland Nursing Home Lawyer Blog

Court Finds Nursing Home Facility Waived Its Right to Seek Mediation in Wrongful Death Case

June 7, 2016 | Lebowitz & Mzhen

Earlier this month, the South Carolina Supreme Court issued a written opinion illustrating how a party’s failure to be upfront with its intention to compel mediation may prevent that party from later compelling mediation. In the case, Johnson v. Heritage Healthcare of Estill, the court determined that the defendant nursing facility waived its right to seek arbitration after the nursing facility failed to demand arbitration when the plaintiff initially filed the lawsuit.

The Facts of the Case

The plaintiff’s mother passed away while in the care of the defendant nursing home. After her mother’s death, the plaintiff filed a wrongful death case against the nursing home, alleging that the negligent care it provided to her mother led to her death. Prior to admitting her mother to the home, the plaintiff had been granted a Power of Attorney and had signed an arbitration agreement, consenting to submit any claims to an arbitration panel rather than pursuing them through the court system.

Once the defendant nursing home got notice of the claim, it answered the complaint, asserting several defenses. One of the defenses cited was that the plaintiff had agreed to seek arbitration, rather than use the court system, in the contract signed prior to her mother’s admission. The nursing home also sought a discovery order from the court, ordering the plaintiff to disclose certain documents. Importantly, while the nursing home cited arbitration as a defense, it never actually demanded arbitration or initiated arbitration proceedings. It was not until eight months later that the nursing home filed a motion to compel arbitration.

State Court Holds that Incompetence May Act to Toll a Statute of Limitations

May 27, 2016 | Lebowitz & Mzhen

Earlier this month, the West Virginia Supreme Court issued an opinion in a case requiring the court to decide whether a person’s mental incompetence can toll a statute of limitations. In other words, the question was whether a person’s inability to understand that they may have a viable case can actually excuse that person from filing a timely lawsuit. The court ultimately held that in some situations, including the one in front of it, a person’s incompetence may toll the statute of limitations.

The Facts of the Case

The plaintiff was the estate of a man who passed away while in the defendant nursing home’s care. According to the court’s opinion, the man resided at the defendant nursing home for 10 years. However, during the last several years, according to the man’s estate, the facility treated him poorly, ultimately leading to his early death.

The man’s estate filed the lawsuit approximately two years after the man died. At pre-trial hearings, the defendant attempted to limit the evidence that the plaintiff was permitted to submit to the court, arguing that some of the evidence was from before the allowable time period, according to the statute. The statute was a two-year statute.

Court Holds Failure to Comply with Mandatory Nursing Home Abuse Reporting Requirements May Give Rise to Liability

May 20, 2016 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of Washington issued a groundbreaking opinion extending potential liability in a nursing home abuse lawsuit to nurses who were required to report discovered instances of nursing home abuse but failed to do so. In the case, Kim v. Lakeside Adult Family Home, the court determined that the Abuse of Vulnerable Adults Act (AVAA), a state-enacted law to protect the elderly, creates a separate cause of action against those who are required to report discovered instances of nursing home abuse but fail to do so.

The Facts of the Case

The plaintiffs in this case are the surviving loved ones of an elderly woman who was given a lethal dose of the pain-killer drug morphine. The drug was not prescribed by a physician but was administered by a nurse who was not a party to this lawsuit.

The defendants were two nurses who were not employed by the facility charged with caring for the deceased, and they were in no way responsible for her care. Both defendants were caring for another individual at the facility when they witnessed what appeared to be lapses in care. On March 28 or 29, one of the defendants witnessed the deceased lying on the floor. The defendant confronted the other nurse, who told the defendant that the patient “falls a lot” and that it was nothing out of the ordinary.

Nursing Home Resident Dies After Being Left Outside in the Sun

May 13, 2016 | Lebowitz & Mzhen

Nursing homes should be places where people can feel at ease placing their aging parents to help them get the medical care and attention that they need in their final years. However, the reality of what nursing homes have come to become in our society is far from that. Partly since nursing homes operate on a for-profit model, the level of care provided to patients is secondary or tertiary to other concerns, including staffing costs.

Just as in any other business scenario, nursing homes get what they pay for when they consider whom they should hire. By hiring inexperienced nurses or those with poor records or care, nursing homes may be able to save a few dollars in the short-term but place their patients at risk. Indeed, these are the very nurses who are likely to act in abusive or neglectful ways when placed under stress.

However, working in a stressful environment is no excuse to neglect or abuse another human being who has been placed in your care. For these reasons, the State of Maryland allows nursing home residents or their families to bring lawsuits against nursing home employees and management in situations in which the nursing home failed to adequately care for their loved one.

The Ugly Face of Nursing Home Neglect

May 6, 2016 | Lebowitz & Mzhen

Nursing homes that care for the elderly have an affirmative duty to provide for the basic needs of the residents for whom the home is charged with caring. This duty goes beyond a moral one, and it is actually legally imposed and enforceable by the courts. In fact, if a nursing home resident suffers any physical injury or psychological torment, the nursing home can be held legally responsible. Injured residents and their families may be entitled to substantial compensation based on the neglectful or abusive tendencies of nursing home staff.

When the term nursing home neglect is thrown around, most imagine a busy nurse failing to attend to every need of their patients. Perhaps the nurse leaves a soiled diaper on a resident for too long, or delivers a meal later than desired. However, the truth about nursing home abuse is much more terrifying.

A Horrific Example of Nursing Home Neglect

Earlier last month, eight employees of an elderly care facility not far from Manchester, England were charged with the neglect of a patient. According to one local news source covering the disturbing story, the eight charged included the owner of the facility as well as the person responsible for keeping the man’s room clean.

One State Considers Banning Anonymous Abuse Complaints in Nursing Homes

April 28, 2016 | Lebowitz & Mzhen

Nursing home abuse is a tragic phenomenon, and everything should be done to curb it. Whether it be an overworked nurse who snaps at a difficult resident, or an angry employee who takes out their own aggression on those who cannot fight back, there is no excuse for engaging in nursing home abuse. However, the sad reality is that nursing home abuse is grossly underreported, with many residents afraid to report the abuse of those who are responsible for their daily care out of fear of reprisal.

Despite that fact, one state is considering a bill that would eliminate a person’s ability to anonymously report nursing home abuse. According to an article by U.S. News and World Report, Illinois legislators are considering a bill that would require each complaint of nursing home abuse to be accompanied by the reporter’s name. If the person calling does not want to provide their name, the report will not be filed.

Of course, doing away with anonymous reporting will limit the number of complaints of abuse, which is why the nursing home industry is in favor of the bill. In fact, about 20% of all abuse allegations currently reported are done so through anonymous calls. While the bill’s sponsor claims that the names of reporters would be held confidential, the mere fact that callers are require to disclose their identity will likely result in fewer calls.

Appellate Court Reverses Lower Court’s Dismissal of Plaintiff’s Elder Abuse Case, Allowing the Case to Move Forward

April 21, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in California issued an opinion in a case brought by the family of a man who died while in the care of a hospital, holding that the lower court’s dismissal of the complaint was in error. In the case, Fenimore v. Regents of the University of California, the court determined that the plaintiffs made sufficient allegations to survive the pre-trial dismissal stage, and the lower court erred when it dismissed the plaintiffs’ elder abuse claims.

Pre-Trial Dismissal Is Rarely Appropriate

In many personal injury cases, the defendant will file a pre-trial motion for summary judgment, asking the court to dismiss the case because the plaintiff’s case is insufficient as a matter of law. These motions, if granted, will result in the dismissal of the plaintiff’s case, and the plaintiff will be prevented from recovery. However, these motions are rarely successful, given the standard with which the court must consider them.

Summary judgment motions must consider the evidence in the light most favorable to the non-moving party. In the case of a motion filed by the defendant, this means that the court should assume that the plaintiff can prove everything they claim happened in their pleadings. In other words, the quality of the evidence or the credibility of the witnesses is not a factor.

Improperly Notarized Power of Attorney Results in Dismissal of Case against Allegedly Negligent Nursing Home

April 14, 2016 | Lebowitz & Mzhen

Earlier this month, the Arkansas Supreme Court issued an opinion dismissing what may have been a meritorious wrongful death case based on the fact that the document giving the plaintiff power of attorney was not validly executed. In the case, Quarles v. Courtyard Gardens Health & Rehab, the lower court dismissed the plaintiff’s case based on two reasons, one of which was the fact that the power of attorney document was notarized after the decedent had signed it, rather than simultaneously, as the law requires.

The Facts of the Case

Bernie Jean Quarles, the decedent, spent 11 months at the defendant nursing home before she was moved to another facility. In June 2010, Quarles allegedly executed a power of attorney document in favor of her son, the plaintiff. A short time later, while his mother was still alive, the plaintiff filed a lawsuit against the defendant nursing home on behalf of his mother, whom he claimed was “incapacitated.” The lawsuit alleged that the nursing home’s negligence resulted in the woman’s deteriorating health.

When the man’s mother died a few months later, he sought to substitute himself as the primary plaintiff. The parties were ordered to engage in arbitration to see if they could reach a mutually acceptable result. As a part of the mediation, the parties exchanged discovery. However, before arbitration began, the defendants asked the court to dismiss the case based on the fact that the power of attorney was never validly executed.

Politicians Speak Out against Nursing Home Abuse Posted on Social Media

April 7, 2016 | Lebowitz & Mzhen

The thought of a nurse who is charged with the care of elderly individuals engaging in a pattern of abuse against his or her patients is bad enough, but lately there has been a rash of cases in which abusive nurses are filming the abuse and posting the videos on social media. The victims in these videos are almost always mentally or physically ill nursing home residents who do not have the ability to fight back or even to ask their abusers to stop.

Of course, this kind of conduct is a violation of the duty of care that all nurses have to their patients. In fact, this duty of care extends beyond just licensed nurses and applies to anyone charged with the care of another person in a skilled nursing facility. When this type of abuse is discovered, the abused individual or their family may be able to seek financial compensation for the abuse and humiliation suffered through a Maryland nursing home abuse lawsuit.

Politicians Condemn Nursing Home Abuse, Seeking More Prosecutions

Aside from being a violation of the duty between caretaker and resident, nursing home abuse is also against the law. In fact, according to one news report, the Chairman for the Senate Judiciary Committee has been probing the U.S. Justice Department about how aggressively it pursues cases alleging nursing home abuse that has been posted on social media.

Nursing Home Lawsuits Brought by Surviving Family Members

March 28, 2016 | Lebowitz & Mzhen

When a nursing home employee’s negligent, reckless, or intentional actions result in the death of a resident, the family of the deceased resident may want to seek justice on behalf of their loved one. This is done through a Maryland wrongful death lawsuit.

Wrongful death lawsuits are similar to traditional negligence lawsuits, but require proof of one additional element: the relationship between the parties. In Maryland, only certain parties can bring a wrongful death case against a negligent or abusive nursing home employee. These are call “primary beneficiaries” and include the “wife, husband, parent, and child of the deceased person.”

However, sometimes there will be no primary beneficiary available to bring the lawsuit. In such cases, the law allows for a secondary beneficiary to proceed with the case. A secondary beneficiary is “any person related to the deceased person by blood or marriage who was substantially dependent upon the deceased.” Of course, this is more difficult to prove than a simple blood relation, because it requires establishing substantial dependence. In some states, if no primary beneficiary exists, then the case will be brought by the deceased’s estate.