Articles Posted in Nursing Home Neglect

Placing a loved one in a nursing home, long-term care facility, or assisted living center is an extremely difficult, emotionally fraught decision – perhaps one of the toughest choices many of us will ever be called upon to make.

Often, the primary reason for deciding to place a family member in a care facility is the assumption that he or she will be provided with the constant care and medical attention that would not be possible in a home setting.

Unfortunately, nursing homes do not always live up to this expectation, and patients can suffer serious injuries or even a wrongful death due to neglect, abuse, or mistreatment in a long-term care facility.

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Several months ago, we told you about a federal court of appeals’ decision in a case in which a medical malpractice insurance company sought a declaratory judgment as to its responsibility to cover certain acts of malpractice after it was discovered that a fake nursing home “doctor” had illegally assumed the identity of a physician who was out of the country.

In that decision, the appellate court held that the principles of equity demanded that there be coverage for the innocent co-insureds under the medical malpractice policy that was in place during the impostor’s time at the nursing home.

Now, the United States District Court for the District of South Carolina, Columbia Division, has issued a new opinion in a related matter.

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Nursing home owners do not like jury trials. In fact, the idea of a jury comprised of everyday men and women determining whether a nursing home neglected a patient and, if so, awarding damages to a patient or the patient’s family is so distasteful to many nursing home owners that they require a patient or his or her representative to sign an arbitration agreement – a contractual promise to arbitrate, rather than litigate through the court system, any disputes that arise between the parties – prior to admission.

When negligence lawsuits and other nursing home cases are determined through arbitration, the patient and the patient’s family lose the right to have a jury decide the case. Often, the family does not fully understand the implication of this distinction at the time the papers are signed.

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It seems that the amount of paperwork required in order to be admitted to a hospital, nursing home, or other health care facility grows with each passing year. It can be overwhelming even under the best of circumstances. Unfortunately, health care providers can be quite demanding and pushy, shoving papers into a patient’s hands or insisting that a loved one complete them prior to admission.

In many cases, the patient or the family member has no idea what he or she is signing. This is especially true when it comes to arbitration agreements, which have the power to prevent a dispute between the patient and the facility from proceeding to court.

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There are several issues that are common in nursing home and senior care litigation, such as falls, medication errors, bedsores, and medical malpractice. In the recent unreported per curiam opinion of Evanston Insurance Company v. Agape Senior Primary Care, Inc., the United States Court of Appeals for the Fourth Circuit was asked to review a case arising in the United States District Court for the District of South Carolina at Columbia that presented a more unique issue.

In early 2012, the defendant facility hired a man who held himself out to be a board-certified physician. In actuality, the man was an impostor, and he had stolen the identity of the real physician, who was out of the country at the time. Approximately six months later, the defendant learned of the impostor’s fraud when he was arrested. He was later convicted and sentenced to two years in federal prison for aggravated identify theft.

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The United States government is a huge entity that cannot possibly be aware of every instance of fraud of which it is a victim. To increase the odds in the government’s favor, Congress passed the False Claims Act, which contains a qui tam provision through which a whistleblower may initiate a lawsuit on the federal government’s behalf, seeking recovery for alleged fraud committed against the government. The federal government may or may not join in the suit at some point.

If the suit is ultimately successful, the whistleblower is awarded a percentage of the recovery. The possibility of this award serves as an incentive for those who are aware of potential fraud against the government to act on its behalf by filing suit under the False Claims Act. Some qui tam actions can be lengthy and complex, especially when large sums of money are at stake.

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In injury litigation, sometimes there is but a single defendant – the driver of a car or the owner of a small business, perhaps. Other times, however, there are multiple defendants and multiple claims. A seemingly simple case can quickly get complex.

Defendants often resist being brought into a lawsuit and will avail themselves of every available opportunity to ask for a dismissal of the case against them. While a thorough accident attorney can spend countless hours researching a case so as not to omit a possible wrongdoer, it is ultimately up to the court to decide who stays and who goes.

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A nursing home’s responsibility to provide appropriate care to residents goes beyond administering medications and protecting the residents from injuries. Nursing home abuse can take many forms, including verbal and psychological abuse.

Readers in South Carolina may have seen disturbing headlines about a woman’s experience at a nursing home in New York. According to reports, a male dancer was hired to perform in front of elderly residents, and now the family of an 86-year-old woman who suffers from dementia and Alzheimer’s disease is suing the facility.

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Imagine that you have a loved one who is currently living in an elderly care facility. Unable to care for themselves, they rely on the help from staff members to provide a certain standard of care. The nursing home staff then in turn relies on the health care directives provided to them by the patient or their health care proxy. This is done so as to avoid breaking any state laws. But what happens if these health care directives aren’t known or are not followed? Could it lead to accusations of patient neglect?

It’s possible for a family to think that a health care facility has failed to provide care for their loved one, especially when it comes to do not resuscitate orders. If the patient establishes a DNR without informing their loved ones, a death at the facility might be considered suspect and the family could accuse the facility of abuse or neglect as a result.

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As our loved ones age the topic of what to do about their care inevitably comes up in conversation. In-home care can be incredibly expensive and isn’t something many families can afford, while nursing homes consistently crop up in news reports telling of the unsafe conditions many facilities across the United States provide.

If a family is unable to care for their loved one themselves, this leaves assisted living homes as their only choice. But as some investigators are discovering, these facilities may not be as safe as people might think due to minimal state and federal regulations. And in a multimillion dollar industry that will only get bigger as more Baby Boomers age, this could mean an increase in wrongful deaths across the nation.

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