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Articles Posted in Nursing Homes

Since shortly after I became a plaintiffs’ lawyer, I have been preaching that we need fundamental change in our nursing homes in this country.  Profit drivers the train.  These nursing homes need to be fixed.  In ten years, we won’t believe what we as a society turned a blind eye to in 2020.  Everything about the COVID-19 pandemic has enhanced this view.

If you have evidence that a nursing home or long-term care facility is providing grossly negligent care, overbilling, or engaging in other fraudulent practices, you can bring a whistleblower lawsuit and get a percentage of any money awarded in the case. Whistleblower plaintiffs in these cases are usually employees at the nursing home, but anyone with direct knowledge of fraud or neglect at the facility can potentially bring a case.

Nursing home liability

Nursing Home Liability Under the False Claims Act

I’m always interested in 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.

Digging up an older copy, 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 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.  I realize there is no cap in D.C., but it is still amazing.

Real Value of Maryland Nursing Home Claims

I’ve been waiting patiently for the first tort opinion of 2018.  I’ve muscled through the attorney grievance opinions and criminal cases for 19 days until I finally got one: Davis v. Frostburg Facility Operations LLC. This nursing home fall case is a cautionary tale for lawyers who step outside of their practice areas.

The issue in Davis is the distinction between ordinary negligence claims and professional malpractice claims.  In most cases, you know whether you have a malpractice case or you don’t. You trip and fall on a slippery floor in a hospital; that is not malpractice. The doctor operates on the wrong leg; that is malpractice.  The question is: what do you do when it does not feel like malpractice, but you fear a court might see it differently?  The Maryland Court of Appeals has acknowledged that the phrase “medical injury” can be a bit ambiguous, making it sometimes different to determine whether a case should be started through HCADRO or a Circuit Court.

The answer is simple.  Just file suit under the Health Claims Act.  It can’t hurt.  But many Maryland lawyers — usually those that have not felt the weight of the nuances and technicalities of the HCA on their shoulders — choose a different path.

We have been handling more and more nursing home cases in the last few years.  How much is a nursing home case worth in Maryland? Well, nursing homes think a strong liability nursing home death case in Maryland is worth between $200,000 and $250,000.

We disagree.  Strongly.  This disagreement is bound to come to a head soon.

Let me explain.

Calls to our law firm by bedsore victims and their families have ballooned in recent months.  We have a few more law firms sending all of their nursing home cases to us and our Internet presence has increased the number of calls we get directly from victims.

There are a lot of questions about how bedsore cases and which cases typically get compensation, the type of cases our firm will take, and what really is the deal with bed sore cases.

If you are a lawyer with a nursing home bed sore client in Maryland, I want you to refer your case to Miller & Zois (with an attorneys’ fee-sharing relationship).  This post is directed to lawyers who nursing home bedsoresrarely handle bed sore care to better understand the pros and cons of bed sore nursing home claims in Maryland and what types of claims are the most viable.

Why Bed Sore Cases Are Good Cases

Nursing home cases are medical malpractice cases in Maryland. You have to file in Maryland Health Claims Arbitration and follow the malpractice statute.  But bedsore cases are the exact opposite of medical malpractice cases.  In a malpractice case against a doctor, the presumption the patient or the patient’s family must overcome is that the doctor is competent and did her very best.  You start behind the eight-ball and need to present overwhelming facts to win. It is hard to win jump ball medical malpractice cases even in victim-friendly jurisdictions.

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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 maryland nursing home lawchanging 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. Our client’s mother in Peeler entered a nursing home after she had a 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 amid 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 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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nursing home settlements verdictsThere is a graph in Metro Verdicts Monthly 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, 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.

nursing home lawsuitsMax Kennerly touches on a topic this week 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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One 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 the 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.

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