Articles Posted in Nursing Home Abuse

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.

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When you get a verdict in a nursing home 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.

A jury in Massachusetts found that a nursing home was negligent in causing an eye injury, awarding $400,000 for the Plaintiff’s pain and suffering during the 45 days between the injury and his death. They did not find that the injury caused his death.

The Plaintiff’s counsel said he thought the verdict was high given that the victim was so old. This attorney did a great job, I’m sure, securing this verdict and should be commended for taking the case. But I don’t think it was a “high” verdict. Who would trade $400,000, that they don’t get, to spend their final 45 days in misery?

This nursing home verdict never would have been possible if a trial judge had not vacated an arbitration agreement the patient executed when he was 91 years old and suffering delusions. The nursing home arbitration agreement had sought to prevent his estate from filing a civil suit if killed or injured by the nursing home’s negligence.

There is an interesting article in the University of Illinois Elder Law Journal entitled “Big Brother” and Grandma: An Argument for Video Surveillance in Nursing Homes.

The premise of the article is that video surveillance systems in nursing homes provide additional safety to the nursing home patient and peace-of-mind for family members who have an elderly loved one in a nursing home. The big issue is whether nursing homes can refuse care if the family insists on a camera in the patient’s room.

The author also addressed a few pressing issues regarding nursing home surveillance. Who will pay for the installation? Who will monitor the captured footage? This will depend on the laws being passed by state legislatures across the country. Several states, including Maryland, have already passed such legislation that lays this out.