Articles Posted in Nursing Homes

Our primary focus at Miller & Zois is to further the interest of our clients by maximizing the value of their injury or wrongful death claims.  But it is also an absolute joy when we can be a part of Nursing Home Consent Formchanging Maryland law that helps all injury victims get a fair shake in their claim.  We did this last week when the Maryland Court of Special Appeals gave a victory for our client and justice in Peeler v. FutureCare Northpoint, a wrongful death nursing home case.

Nursing Home Arbitration Agreements

At stake in Peeler v. FutureCare Northpoint was the breath of an agreement to arbitrate any claims that arise between a resident and a nursing home. I’m Our client’s mother in Peeler entered a nursing home after she had femoral-femoral bypass graft at Johns Hopkins Bayview Medical Center.  She was asked upon arrival to sign an arbitration agreement. Clearly, this was not a moment of great clarity, right?  This is not uncommon.  Most decisions you make when entering a nursing home are made in crisis mode resulting from a precipitous decline in health.  So in the midst of this emotional powder keg, the incoming resident or their family must sign a million documents.  There is no time to plan or weigh options. I’m a lawyer. There is no way I’m reading all of those documents in that situation. I’m certainly not feeling free to negotiate with the nursing home.  I’m in the most unequal bargaining position imaginable. I just want — or I wanted my loved one to get — the needed care to get through the days ahead.

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The state of elder care in the United States is incredibly poor. Sending a loved one to a nursing home has become more and more difficult, Lonely old womannot for lack of quantity, but for lack of quality care. The problem is especially big in Maryland, where malpractice, malnutrition, and plain bad care run rampant throughout the elder care system. If the amount of lawsuits filed are any indication, some of the lowest quality care facilities are in Prince George’s County (P.G.) and Baltimore City.  You can argue that these are the best jurisdictions for plaintiffs so, of course, all of the cases get filed there.  But you can also read the list of complaints and inspections that the government does.  Trust me, P.G. County and Baltimore City are not great jurisdictions for nursing homes.

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nursinghome5The graph in Metro Verdicts Monthly this month is on nursing home verdicts and settlements in Virginia and Maryland over the last 25 years.

The median nursing home verdict/settlement in Virginia was $287,500. In Maryland, the median verdict was $150,000. Virginia seems about right. I think the Maryland data is wrong. Again, I have no idea how Metro Verdict Monthly compiles this data.

Jury Verdict Research did a study that found that nursing home plaintiffs get a median award of $329,000. Defense lawyers are not eager to try these cases for a reason: plaintiffs win at trial a stunning 63 percent of nursing home jury trials. So, statistically speaking, you are more likely to win at trial a nursing home case than a rear end accident case. Crazy, right? Why more lawyers are not pushing for nursing home cases is beyond me. They are not as lucrative as they once were but they are still good cases that also, not for nothing, really help protect nursing home patients.

nursinghome6Max Kennerly touches on a topic this week that I think is interesting and important. To what extent are plaintiffs’ nursing home lawyers making nursing homes safer?

People hunker down in one of two camps: (1) nursing home lawyers are saving our elderly from being unmercifully abused; or (2) nursing home lawsuits drain so much money from nursing homes that they can’t provide quality service at a meaningful price. As the poets say, the answer probably lies somewhere in the middle and these binary choices don’t do justice to the complexities of the issue.

Anyway, the blog post was precipitated by an article in The New England Journal of Medicine on the impact of nursing home lawsuits on nursing homes. The NEJM recently took a lot of heat from doctors for arguing that medical malpractice tort reform is not helping to reduce costs or improve patient care. On nursing home lawsuits, however, the journal goes in a somewhat different direction, concluding that lawsuits are not making nursing homes safer and that being a “good” nursing home does not provide much insulation from litigation. I’m oversimplifying a complex study but that is the gist of it.

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elderlysigningOne case I have been meaning to write about for a few months is Dickerson v. Longoria, a recent opinion that I think is important for Maryland nursing home patients and their counsel.

The ultimate issue in Dickerson is whether a family member had the authority to bind a nursing home patient by agreeing to an arbitration clause. The Maryland Court of Appeals found that the relative did not.

But the larger issue is whether Maryland law allows for enforcement of a nursing home negligence arbitration agreement. I think it is hard to argue that a waiver signed at admission, even if signed by the patient, is a knowing, intelligent, and voluntary waiver of one of our most fundamental constitutional rights: the right to a jury trial.  The reality is people seeking admission to a long-term care facility or a nursing home are focusing on their immediate concerns  — cost, logistics, quality of care — not legal ramifications of future potential disputes or the small print buried in a long document.  The law should be protecting people from themselves because that is not a level playing field and that term is, let’s be honest, being forced down someone’s throat at what may be one of the most emotionally complex moments of their lives.  Often, seniors do not have a real choice in where they go.  What matters is that it is close and that there is a bed available.

nursinghome6The Centers for Medicare & Medicaid Services recently published a report analyzing approximately 16,000 nursing homes in this country and assigned each a rating – from one star to five stars – based on such criteria as health inspections and staffing.

In a less prolific blow than the other shots to the head delivered in 2008 to the theory that an unfettered free market is always the best answer, approximately 27 percent of for profit homes surveyed were given one star, versus 13 percent of non-profit homes. At the top of the nursing home food chain, 19% of non-profit homes were awarded five stars, compared with 9 percent of for profit homes. From this pretty overwhelming data, it is hard to argue that for profit nursing homes provide an equal level of nursing home care to that of non-profit homes. While I am not sure what the profit to non-profit nursing home ratio is in Maryland, I don’t think this conclusion shocks a single Maryland nursing home lawyer. The vast majority of nursing home cases are against private, for profit nursing homes. Continue reading

Every month or so, I report on the Metro Verdicts Monthly graph on the front of their publication which compares verdicts and settlements for a certain type of personal injury claim in Washington D.C., Maryland, and Virginia. Sometimes I am surprised by the difference in the results.

nursinghome5This month I am astounded by the difference between Virginia, Washington, D.C. and Maryland in median nursing home liability verdicts and settlements since 1987. The median recoveries in Maryland and Virginia are $125,000 and $175,000, respectively. This means that the median settlement and verdict in Virginia is 40% higher than Maryland. Virginia juries are generally more conservative than Maryland so this result is somewhat surprising. But here is what I find surprising: the average nursing home case settlement or verdict in Washington, D.C. is $700,000.

As I written before, Washington D.C. is not the most hospitable jurisdiction for medical malpractice claims.  It is helpful that the District of Columbia does not have any medical malpractice caps and certainly that is a factor to be considered.   In Maryland, nursing homes can rest easy knowing that is the typical case,  it is hard in 2015 to get more than the $755,000 pain and suffering damage cap because nursing home residents rarely have economic losses such as lost wages or loss of household services that tend to drive these claims.

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