Articles Posted in Nursing Homes

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.

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 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

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