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For a brief moment last year, it seemed as if nursing home arbitration agreements might be a thing of the past. That’s because the Centers for Medicare & Medicaid Services (CMS) issued a new rule barring any nursing home that accepts federal money from CMS (which is virtually all nursing homes) from requiring mandatory arbitration agreements during the admissions process. That was supposed to take effect in November. courtroom

However, a federal judge in Mississippi granted an injunction against implementation of that rule, at the request of a nursing home industry trade group. The CMS quietly released a memo in December indicating it wouldn’t enforce the arbitration rule so long as the injunction was in place. At this point, there remains uncertainty because it isn’t clear how the Trump administration, which oversees CMS, will handle this issue.

So in the meanwhile, courts across the country continue to weigh in. Prior to the injunction, the Florida Supreme Court ruled that an arbitration agreement signed by an adult son on behalf of his father was not binding on his father. The son did not have power of attorney and thus lacked authority to sign the documents on his father’s behalf, and thus his father wasn’t required to have his claim handled by an arbitrator.  Continue reading →

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State lawmakers in Texas haven’t given up the fight to hold accountable nursing homes that provide substandard care. It will be the second time state lawmakers are making the effort, after a failed bid two years ago. holdinghands

The push involves three bills that would make it more difficult for nursing homes and other long-term care facilities, such as assisted living facilities and home community service agencies, to cower from regulatory discipline and litigation when wrongdoing has been uncovered.

One measure involves imposing higher fines on facilities where inspectors have discovered serious violations that breach the care and safety of residents. Another measure would do away with the so-called “right to correct,” a legal loophole that gives many nursing homes an out in avoiding disciplinary action if administrators “correct” the violation after it’s discovered upon inspection. The final measure would require nursing home facilities to carry at least $1 million in liability insurance, which would make it easier for victims and loved ones to recover damages in the event the facility is found liable of nursing home abuse, neglect or negligence.  Continue reading →

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A CNN Investigations report delved into the pervasive and disturbing – but hugely underreported – issue of nursing home sexual abuse. wheelchair

Noting that “it’s impossible to know” the exact number of victims who suffer this abuse, state and federal data, along with interviews with experts, regulators and families of victims indicates this problem is far more common than what one might suspect. Worse is the fact that many times, neither the nursing home nor government regulators that oversee these facilities seem to do be doing much to address the issue.

Reporters noted that in some cases, nursing home employees and administrators and government agencies can’t get far with these investigations because victims are unable to communicate what happened to them or even identify who it was that caused them harm. However, there are a substantial number of cases wherein negligence and even willful concealment is at issue. The news organization detailed cases in which nursing home administrators were slow to investigate and report allegations, often because, as they would later explain, they didn’t want to believe the allegations were true. Police often approach these matters with great skepticism, often using any opportunity to dismiss the victim’s statements due to allegations that aren’t concise or memories that are failing. Further, because there is a high standard of proof when it comes to substantiating an allegation of abuse by a state regulator, even individuals who have been repeatedly accused of abuse may never be red-flagged.  Continue reading →

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A case nursing home elopement ended tragically in Massachusetts recently, when a man who suffered a severe brain injury wandered away from a nursing home one Tuesday night. He was found dead the next day. door

Local news outlets reported the 54-year-old was last seen at the nursing home around 7 p.m. the evening before. Having suffered a severe brain injury  from a ruptured aneurysm which resulted in severe memory loss, as well as numerous other medical conditions, the man wasn’t necessarily considered high risk, the way some Alzheimer’s or dementia patients are. He wasn’t required to wear a monitoring bracelet. Staffers called police when they realized the man was missing, but told authorities they didn’t know if the building had surveillance cameras and weren’t sure how to access records to determine exactly when the exit doors had been opened. The evening before he disappeared, his brother had just helped him move from the ground floor into a newer room, reserved for patients with longer stays.

Although he was often confused, believing he still lived in his childhood hometown, doctors were hopeful that he would be able to regain a significant amount of his brain function. He had been in a coma for two months after the aneurysm ruptured back in October. However, much of the time recently, he’d been agitated and confused. It is believed he went missing some time between 7 p.m. and 8 p.m. Staff believed he may have simply walked out the front door of the main floor, possibly by following someone else out. The facility filed their missing persons report around 8:20 p.m.  Continue reading →

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In an increasing number of places, mandatory nursing home arbitration agreements are being challenged. These agreements are binding contracts, but many people don’t realize that when they sign them as part of the admissions process to a nursing home, they are signing away their right to have any future disputes resolved in court. Instead, those disputes are funneled to an arbitrator, who is not required to follow the law. Proceedings aren’t public and arbitrators more often than not favor the nursing home. Even when damages are awarded to the plaintiff, the sum tends to be for far less than what plaintiff likely would have gotten if the case had gone to trial. brokenglasses

There are many reasons to fight back against enforcement of an arbitration agreement with a nursing home. That’s what some in Minnesota are doing, according to the Star Tribune. In one case, plaintiff believed she had a strong legal case against the nursing home where her father had lived before his sudden death at age 89. There was evidence the assisted living facility failed to respond in a timely manner when her father vomited numerous times and screamed for help while pointing to his badly swollen stomach. After several hours, eh died of complications related to a common hernia, something that was easily treatable had he received prompt medical attention.

When plaintiff sued the nursing home for this, they hit back with a motion to compel arbitration, pointing to an arbitration agreement signed when her father was first admitted to the facility. The nursing home claims the densely-worded contract requires the family to have the dispute resolved in arbitration, even though it involves a claim for wrongful death.  Continue reading →

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Nursing home abuse lawsuits are often filed as medical malpractice actions. That’s because the cases involve the failure of medical staffers – certified nursing assistants, registered nurses and doctors – to abide by the applicable standard of care. The reason why it is important to distinguish between medical malpractice claims and those involving general negligence is that the process for prevailing on a medical malpractice claim is far more involved. Medical malpractice lawsuits require expert witnesses willing to attest that the medical professionals who are defendants in your case did not meet the basic standards of care, and therefore breached their duty to the patient and should be accountable for resulting injuries. gavel

This is a stricter standard than general negligence.

In a recent case out of Georgia, a state appellate court has revived a lawsuit against a physician in a small-town nursing home over the treatment of a patient who died after suffering from an infection at the facility stemming from an untreated pressure sore.  Continue reading →

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Within a span of just a few months, two residents at the same facility passed away as a direct result of nursing home neglect. That’s according to a new report by state health officials in Minnesota, whose findings were reported by the Star-Tribuneelder

The two separate incidents involve neglect and failed oversight, with one person suffering fatal injuries after a staffer used the wrong lift device and failed to get the proper assistance in moving the patient. In another case, an 85-year-old woman was denied life-saving measures during a heart attack because her directive on file was overlooked.

In many cases, nursing home neglect is the result of a combination of factors, namely:

  • Lack of staff experience/ training.
  • Failure to make there are enough staffers present to take care of patients’ basic needs.
  • Failure to provide the appropriate equipment/ tools to properly care for residents.
  • Lack of proper supervision.

Continue reading →

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A woman is suing a nursing home in Virginia, alleging her 84-year-old mother was tied to a wheelchair with bed sheets and injected with a powerful narcotic drug in an effort to keep her quiet. The physical and chemical restraints forced on the elderly woman were reportedly kept in place overnight. wheelchair

Such information, if proven, would likely be a violation of criminal laws as well as the patient’s civil and resident rights. Specifically, patients have the right to be treated with dignity and respect, to be free from abuse and neglect and to be free from restraints. Nursing homes aren’t allowed to use physical restraints, such as side rails, or chemical restraints, such as drugs, to discipline patients or for the staff’s own convenience.

The Virginian-Pilot reports local police were not contacted about the case and there haven’t been any criminal charges filed. However, the state’s health department received to complaints regarding the alleged incident, indicating at least two patients were placed in restraints the nursing home. Ultimately, the department devised a correctional plan.  Continue reading →

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Two ex-workers at an Illinois nursing home are suing their former employer for allegedly firing them for their refusal to fabricate medical reports that would have documented instances of nursing home abuse and elder neglect. sad

Some of the allegations of abuse of patients cited by the workers were investigated by the state’s department of health, which ultimately cited the nursing home for a number of safety breaches that jeopardized patients’ well-being. The facility in question houses more than 300 beds and purports to serve those who are both elderly and bed-bound, as well as those who are younger and suffer from serious mental illness and substance abuse. Some of those in the younger cohort are convicted felons involved in violent crimes. One of the plaintiff workers told The Chicago-Tribune the most vulnerable residents were not protected by the facility from some of the residents who posed a threat. He called it, “dangerous.”

Although the CEO for the facility would not talk about the specifics of the lawsuit, he denied that the nursing home ever attempted to mislead state health inspectors or alter patient records. The facility insists there was never any directive to surreptitiously change patient records.  Continue reading →

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In Wetzel v. Glen St. Andrew Living Community, a federal lawsuit filed in the U.S. District Court of the Northern District of Illinois Eastern Division, plaintiff alleges a discriminatory denial of equal housing opportunity on the basis of her sexual orientation. Specifically, she says the housing center and its managers failed to protect her from other residents who were hostile, verbally insulting and physically abusing her on a regular basis since it became known that her life partner, now deceased, was a woman. old hands

The woman’s story was recently chronicled by The New York Times, which explained how the 69-year-old plaintiff had been grateful to find the tiny room in the senior living community after losing her life partner of 30 years to colon cancer. She battled health problems herself and didn’t have much in savings. As she began to become acquainted with other residents, she revealed she had raised her son with her partner. That information was not received well, and plaintiff almost instantly knew other residents were upset by it. Word traveled fast.

In the months that followed, she was pushed, shoved and spit on. She suffered injuries including bumps on her head, a black eye and bruising. One male resident in particular was threatened her repeatedly with violence, using obscene language and threatening to “throw you down an elevator shaft.”  Continue reading →

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