Articles Posted in Nursing Home Abuse

appellate court nursing homeUnfortunately, 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.

Strong allegations from Florida: a class action nursing home lawsuit claims a Lake Worth nursing home that engaged in a scheme to defraud Medicare and Medicaid and “prey on vulnerable adults.”

The lead plaintiff seeks a class action after injuries frequently the subject of nursing home lawsuits: disfiguring ulcers on her heels. The nursing home denies liability but has asked a law firm to investigate the allegations. The ole “I didn’t do it but let me investigate whether I did it” plan of attack.

Lake Worth Manor has been a troubled nursing home. It has the lowest rating from Florida’s Agency for Health Care Administration and has spent 31 days on Florida’s watch list. The nursing home’s co-medical director, who just stepped down from his position, has a history that, well, let’s say it makes you think he should not be running a nursing home.

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.

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.

The family of 75-year-old Wilmington native has alleged evidence of abuse and neglect at a state-run facility. What is interesting about his case is that the nursing home resident’s family cared enough to get evidence by through a “nanny cam.” Earlier this summer, the nieces of this woman who is suffering from dementia, diabetes and a bad back, delivered a DVD of several incidents to the Delaware’s Division of Long Term Care Residents Protection — the agency that monitors the welfare of nursing-home residents and investigates allegations of patient abuse.

Unfortunately, not everyone has a caring family with the time and resources to set up a nanny cam when a nursing home is abusing or neglecting a patient. But maybe we have stumbled onto something here. Would nanny cams set up appropriately by the state help reduce nursing home neglect and abuse?

A nursing home in Carrollton has been sued for failing to maintain the health and safety standards required by Texas law, according to a lawsuit filed by the Texas Attorney General.

Specifically, the Texas Attorney General’s complaint alleges that Brookhaven Nursing Center’s failure to have backup safety measures and emergency response protocols was a contributing cause to the death of a patient who died of oxygen deprivation because the patient’s oxygen system shut down during a power outage.

It is a sad commentary that Texas now has to rely on the state to bring about justice because there are so few nursing home lawyers left in Texas.

Chicago lawyer Louis Cairo has filed a wrongful death lawsuit against a Cook County nursing home, alleging that the nursing home employees were woefully ill-equipped, causing the death of a 67-year-old man. The lawsuit alleges that staff members at Hampton Plaza Health Care Centre on 9777 Greenwood Avenue did not have the necessary training or equipment to adequately respond to a fire. The Plaintiff’s nursing home lawyer said that residents were awakened not by smoke alarms, but by people banging on doors to alert others of the fire. This is not exactly a sign of effective smoke detectors.

If you substitute the word “nursing home” for “restaurant” in this story, it would make me skeptical as to whether the restaurant was negligent, as opposed to a plaintiffs’ lawyer trying to manufacture a case because he has a death case (probably a high profile death case, as many fire deaths can be). Because it is a nursing home, I find myself nodding along, “Yes, they didn’t have fire detectors. That sounds about right.” I don’t think I’m alone. That is a sad commentary on nursing home care in this country.

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