Articles Tagged with nursing home negligence attorney

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The admissions paperwork required of a new nursing home patient is substantial and sometimes overwhelming. There are reams of medical forms, releases of information and waivers. It’s a stressful time, so many new patients and/ or family members go through the motions of just getting through it all. What many might not realize is that tucked in there somewhere is probably a form known as an arbitration agreement. By signing that agreement the patient and/or patient representatives agree to forego the right to a jury trial if a dispute later arises between the patient/ representatives and the nursing home. This includes disputes regarding allegations of nursing home abuse, neglect or negligence. 

Signing over that right is a big deal because arbitration is usually less favorable to patients on many fronts. That’s why so many nursing home abuse attorneys will vehemently argue that even if there is an arbitration agreement, it’s not enforceable for one reason or another. It requires an injury lawyer or wrongful death attorney who is also well-versed in contract law. These are questions you need to ask of any lawyer with whom you’re consulting and considering to hire.

In a recent case out of West Virginia, the state supreme court ruled in AMFM LLC v. Shanklin that an arbitration agreement signed by the daughter of a patient could be enforced – despite daughter’s protests that she did not have actual authority to enter into the agreement because she held only the alternate durable power of attorney for her mother; her brother was actually the one with primary durable powers of attorney. Although the trial court denied the nursing home’s motion to dismiss on these grounds, the state supreme court reversed.  Continue reading →

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A new analysis of data culled from the U.S. Bureau of Labor Statistics paints a bleak picture for the workers we entrust with the care of some of our most vulnerable citizens, and in turn raises questions about how their care might be impacted. 

The federal agency’s newest release of non-fatal workplace injuries and illnesses reported by private employers indicated approximately 2.9 million workers were injured annually in 2016, which represents a rate of 2.9 cases for every 100 full-time employers. State-operated nursing and residential care facilities had a rate of workplace injuries and illnesses that, on average, was about 13.7 cases per 100 full-time workers. That’s an increase from 12 per 100 just a year earlier. Privately-owned skilled nursing facilities, meanwhile, as well as those operated by local governments reported injury rates that were 6.5 and 6.1, respectively. In total, skilled nursing facilities in all three categories reported nearly 260,000 work-related injuries and illnesses that year, with nearly 112,000 of those workers requiring days away from work, job transfers or job restrictions on the kind of work they could do. This reflects research released in 2012 by RTI International that 60 percent of nursing assistants in nursing homes incur some type of occupational injuries, ranging from back injuries to black eyes to bites and physical violence.

That raises substantial questions about not only what needs to be done to ensure these workers are healthy, but about the quality of care patients are receiving. For instance, many nursing homes are already understaffed as it is, and the problem is worsening as the population ages. When a worker is forced to take leave or work on restricted duty because of an injury, it means there is even less staff to care for patients’ day-to-day needs.  Continue reading →

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A report recently released by a state health department revealed the death of a prominent Pennsylvania businessman in a nursing home in September was caused by strangulation as a result of his bed rails. The nursing home was cited by the health department for safety deficiencies related to the death. Investigators with the department determined the facility failed to identify the hazard created by using the side rails that ultimately resulted in this man’s death. He reportedly suffered from the late stages of Alzheimer’s disease and was largely immobile too. He was discovered by a nursing assistant around 11:30 p.m. one night, not breathing, with his body on the floor and his neck between the mattress and the side rail of the bed. 

The health department took note of the fact that side rails are only supposed to be used to assist in helping a patient re-position himself when no other reasonable alternatives are identified. Even then, facilities are supposed to use reasonable precautions when they are being used. The facility removed all bed rails it had been using at the time shortly after decedent was discovered.

This is not a new problem. The U.S. Food and Drug Administration has long been tracking injuries and deaths related to bed rail entrapment and strangulation in nursing homes. The agency reports that even when bed rails are properly designed to lower the potential risk of falls or entrapment, they still present a danger to certain people, namely those with some form of dementia (as they are at greater risk of a fall when they try to get out of bed, despite something being in their way). The agency reported that between 1985 and 2013 (the most recent period for which it conducted the analysis), there were 531 rail-related deaths.  Continue reading →

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The AARP Foundation has filed a lawsuit on behalf of an elderly couple married 30 years after the wife, 83, was evicted and separated from her husband, 93. The foundation reports the wife, who has Alzheimer’s disease, was evicted without warning in March. 

Although the nursing home has declined to comment on the pending case, court documents indicate the nursing home’s defense is likely to include allegations of aggression by the elderly woman toward staff. She reportedly threw some plastic tableware. The nursing home called for an ambulance, underwent a psychological evaluation – and the hospital found nothing wrong with her. However, the nursing home would not allow her to return, saying they are not able to care for her needs. Her son requested a hearing with the California Department of Health – a hearing that he won. But then the nursing home responded that the health department has no authority to enforce the ruling. That prompted the AARP Foundation’s legal arm to get involved. The foundation is now suing the nursing home on her behalf.

Although it’s reportedly the first time the foundation has taken up a case regarding nursing home eviction, it’s certainly not an isolated incident. In fact, NPR reports these “involuntary discharges” result in 9,000 complaints annually across the country. It’s the No. 1 complaint made about nursing homes, and several states’ attorneys general have gotten involved. For instance, Maryland’s attorney general is suing one chain nursing home for Medicaid fraud, alleging the firm charged for state services it never delivered – specifically, discharge planning.  Continue reading →

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The White House is pushing to scuttle a rule that would have paved the way for more nursing home residents to take legal action against nursing homes for poor care, abuse and neglect. Such injuries for nursing home negligence are actionable under state personal injury laws. However, the Obama administration had made it easier for plaintiff’s by preventing nursing homes from mandating new patients agree to arbitration – as opposed to the court system – to resolve any future disputes. 

Many nursing homes require new patients, patient representatives and family members to sign arbitration agreements as a condition of being admitted to the facility. Arbitration agreements are known to infringe on the rights of patients for a number of reasons. Firstly, arbitrators are chosen by the facilities and insurers, creating an implicit bias. Arbitrators are not bound by the laws of the state. The proceedings are private, depriving the public of valuable information regarding the practices and shortcomings of these facilities. They also tend more often than not to favor the facility, awarding less on average than the courts when they do decide a case in a plaintiff’s favor.

As The New York Times reported, the Trump administration is now seeking to roll back earlier protections, citing the need to reduce costs for businesses.  Continue reading →

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A widow is suing the nursing home where her husband, a patient, died last year after his clothes caught fire when he was smoking on the balcony, has filed a nursing home negligence lawsuit, alleging both the facility and the county are responsible for violating federal regulations, resulting in her husband’s death. 

Plaintiff’s attorney explained to the Philly Voice that decedent had been diagnosed with a number of diseases and ailments that necessitated assistance with many basic tasks. Yet, he was allowed to smoke unsupervised on the day of his death. Records show plaintiff was being treated for Parkinson’s disease, brain disease and bipolar disorder. He needed help to eat, dress and bathe. On the day of the fire, he was smoking a cigarette alone on a balcony at the facility, when his clothing caught fire. He was almost immediately engulfed in flames. He was seriously injured and died about a month later of those injuries, after enduring tremendous pain and suffering.

Smoking in nursing homes is a hot-button issue. Although cigarette smoking is becoming less prevalent in younger generations, thanks to education and awareness campaigns that accurately warn of the danger, older generations didn’t have that benefit – or often the same restrictions. Many long-time smokers may be in poor health, but they remain passionate about their right to smoke – and that doesn’t necessarily change just because they have entered a nursing home. Every center may have varying policies, but those that do allow smoking by residents have a duty not only to protect the smokers, but to balance those rights with the health and safety of other residents and staffers.  Continue reading →

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Workers at state-run nursing homes face a higher risk of on-the-job injuries than construction workers or those in manufacturing.

That’s based on the latest figures from the annual report issued by the U.S. Bureau of Labor Statistics on workplace illnesses and injuries. There were approximately 2.9 million nonfatal workplace injuries and illnesses across the private sector last year and another 753,000 in the public sector, according to the Labor Department. On the whole, that works out to three injuries per 100 full-time workers in the private industry and 5.1 injuries per 100 full-time workers in state and local government. Meanwhile, when it comes to nursing home employees, those who work at state-run nursing homes and residential care facilities are injured at a rate of 12 per 100 full-time workers. This represents more than 13,700 cases of recorded injury or illness suffered by nursing home employees last year. That’s even more than local police, who suffered an injury rate of 11.3 per 100 workers. The Bureau of Labor pointed out also that these figures are actually low because these incidents are often unreported.

Work-related injuries among nursing home workers can have a direct impact on the quality of care that patients receive. First of all, a facility that is well-run prioritizes the safety of all who are present – including the employees, who are critical to the process. A facility that does not have or does not enforce worker safety guidelines is not likely to do so when it comes to patient safety either. Continue reading →

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A woman in Oregon has filed a $2.7 million lawsuit against a nursing home, as well the physical therapy and hospice providers who were on contract with the facility, for alleged negligence resulting in the death of her elderly mother and stepfather. 

According to The Register-Guard, the woman alleges in her wrongful death lawsuit that administrators and therapists at the facility failed to meet the needs of her parents, ages 91 and 92, and that this failure resulted in their premature deaths, just weeks apart from one another.

Plaintiff’s stepfather was 92 when he died in late 2014, and her mother was 91 when she died just a few weeks later. Plaintiff is the representative for the separate estates of both parents, who had each previously been diagnosed with dementia and were deemed a serious fall risk. Even though the nursing home had this knowledge, plaintiff asserts, staffers failed to prevent them from falling numerous times, leading to serious injuries and the acceleration of their deaths.  Continue reading →

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Florida courts have been increasingly allowing nursing home negligence lawsuits to go to trial, despite the existence of nursing home arbitration agreements. Defendant nursing homes are looking to compel plaintiffs to resolve their dispute via arbitration, where outcomes are private and tend to favor the facility.

The grounds on which a court may find an agreement unenforceable usually involve whether the agreement is “unconscionable.” That means the contract is so one-sided, it’s unfair to one party and violates public policy. It’s the kind of contract that leaves one party with no real, meaningful choice and typically arises due to the power imbalance between the two parties. So many of these nursing home arbitration agreements are signed by vulnerable patients or their loved ones upon admission – sometimes as a condition to admission. A contract can be unconscionable if there is:

  • Undue influence;
  • Duress;
  • Unequal bargaining power;
  • Unfair surprise.

Such an agreement may also be unenforceable if the person who signed it did not have the capacity or authority to do so. Elderly adults with dementia may not have the mental capacity to enter into legal agreements, but if their relatives are not expressly designated as their legal representative, they may not be able to legally sign on their loved one’s behalf.  Continue reading →

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A Florida nursing home has lost its bid to compel arbitration in the case of a woman who alleges her husband suffered injury as a result of nursing home negligence while a patient there. Although the trial court had ruled the case should go to arbitration, Florida’s 2nd District Court of Appeal reversed, finding the claims raised by the estate of the decedent resident were not within the scope of the arbitration agreement. The reason? It had been signed with a different company entirely. 

That’s right. Defendant was attempting to use the arbitration agreement decedent had signed with his assisted living facility provider to require the complainant to resolve her allegation of negligence against the nursing home before an arbitrator rather than a court. The primary reason the trial court had Ok’d this was because the nursing home and the assisted living facility were owned by the same company. Further, there was a provision in the assisted living facility arbitration agreement in which it was stated that the agreement would remain in place, regardless of whether the patient was transferred to and from the facility. Upon readmission, that agreement would still remain in effect. It was to be understood the arbitration agreement was applicable to all future admissions.

Trial court had relied on this provision in granting defense motion to compel arbitration. However, the 2nd DCA reviewing Olson v. Florida Living Options reversed.  Continue reading →

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