Nursing Home Abuse

April 22, 2014

Two New Pennsylvania Appellate Nursing Opinions

Unfortunately, most courts around the country have enforced nursing home agreements executed by residents agreeing to forgo civil claims in favor of arbitration for negligence claims.

The game changes in wrongful death cases. Usually this is for a very simple reason: the parties have changed. Courts in Maryland and other jurisdictions have largely declined to enforce arbitration agreements between nursing homes and deceased residents because any wrongful death action is not an “asset” of the estate but a claim brought under the plaintiffs’ own right for the loss of their spouse or parent.

There are two new Pennsylvania nursing home cases that favor plaintiffs in these disputes.

Pisano v. Extendicare

In Pisano v. Extendicare Homes, a Pennsylvania intermediate court affirmed the trial court’s motion for summary judgment in a wrongful death and survival action filed against a nursing home. The nursing home attempted to compel arbitration over both causes of action based on the existence of an agreement to arbitrate all claims against the nursing home, expressly including survival and wrongful death actions. This was an issue of first impression in Pennsylvania.

The nursing home’s best argument in these cases, which they made in Pisano, is that a wrongful death claim is a derivative of and defined by the decedent’s rights. While it is their best argument, it is weak. The Pennsylvania court agreed using a lot of complicated legal analysis that can best be described as follows: the parties are different so it is not derivative.

March 18, 2013

New Jersey Nursing Home Verdict Affirmed (to Plaintiffs’ Chagrin)

by Ronald V. Miller, Jr.

When you get a verdict in a nursing home negligence case, you generally are home free unless you lose on appeal. In this case, the appellate court affirmed the verdict to the chagrin of the plaintiffs’ lawyers.

Wait! What? Here is what happened. A woman suffers a stroke that causes the complete paralysis of all her voluntary muscles except her eyes. Just awful. The condition, known as “Locked-in Syndrome”, requires nursing home care. At the home, she suffers from a sacral decubitus ulcer, also known as a bed or pressure sore, at stage three. While in the nursing home, the ulcer progresses to stage four. Bed sores do not get any worse than stage 4. She transfers to another facility and dies. A nursing home lawsuit ensues.

During the trial, the plaintiff’s nursing expert testified that the defendant’s nursing home breached the standard of care. Another expert tells the jury of the standard of care regarding the defendant’s dietary practices, most notably the treatment of her diabetes. Plaintiff’s claim is fundamentally that the nursing home failed to provide adequate nursing care and nutrition that would have prevented decedent’s bedsores from healing. This just, as I’m sure was the case, made her worse and made her pain worse. But, while they allude to it, the experts never link up the pain and suffering to any breach of the standard of care.

December 4, 2008

Los Angeles County Medical Malpractice/Medical Neglect Case

by Ronald V. Miller, Jr.

The Los Angeles Times writes this morning about a tragic case in Los Angeles at Martin Luther King Jr.-Harbor Medical Center where an official Los Angeles County assessment has acknowledged for the first time that a woman who died shortly after writhing in pain for nearly an hour on the hospital’s waiting room floor would not have died if she had received proper medical care.

The vast majority of medical malpractice cases in Los Angeles occur when doctors who are largely good doctors and good people with good intentions but medical mistakes were made. This is something very different. The only reason this woman’s family has a potential wrongful death medical malpractice case is that a security camera videotaped a janitor mopped around the victim while a triage nurse dismissed her complaints.

Sad but true: video cameras and phones are helping make more and more medical malpractice and nursing home claims.

September 15, 2008

Mississippi Nursing Home Nursing Home Escapes Liability on Technicality

by Ronald V. Miller, Jr.

The Fifth Circuit U.S. Court of Appeals affirmed the dismissal of nursing home abuse neglect claim because the plaintiff failed to provide 60 days’ notice of the intention to file a medical malpractice action against a health care provider as required under Mississippi Code Section 15-1-36(15). This statute requires Mississippi nursing home and medical malpractice plaintiffs to health care provider’s sixty (60) days’ prior written notice notifying the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.

This statute comes from Mississippi’s disastrous tort reform act passed in 2002 that, among other things, establishes a cap on noneconomic damages of $ 500,000 for lawsuits filed before July 1, 2011, a cap of $ 750,000 for those filed after July 1, 2011, but before July 1, 2017, and a cap of $ 1,000,000 for those filed thereafter.

I do not have a problem with the ruling because it is a correct interpretation of the Mississippi law. But the law accomplishes nothing in this case but to deny a Plaintiff the right to justice.