Articles Posted in Nursing Home Neglect

Healthcare providers like nursing homes and hospitals generally prefer to arbitrate, rather than litigate, South Carolina medical malpractice claims.

There are several reasons for this, including the likelihood that the damages award paid out to a particular medical malpractice victim (or his or her family, if the patient died) will be substantially lower if an arbitrator – rather than a jury – considers the issues in the case.

Of course, not every agreement to arbitrate is legally enforceable. While many such agreements are upheld by the courts, some are declared unenforceable.

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More and more often, nursing homes, assisted living centers, and the like are requiring patients and their families to sign binding arbitration agreements prior to a patient’s admittance. Nursing homes do this because they do not want a jury to hear a South Carolina nursing home abuse case in which they are accused of negligently or recklessly injuring or killing a patient. Fortunately, not all of attempts to deprive a patient or his or her family of their day in court are successful.

Facts of the Case

In a recent case, the plaintiff was the niece and personal representatives of the estate of a man who allegedly died due to the negligence of the defendant skilled nursing facility in 2013. (The plaintiff was also the personal representative of the decedent’s statutory beneficiaries.) The defendant sought to compel arbitration of the plaintiffs’ claims based upon an arbitration agreement allegedly signed by the  niece, who allegedly signed the agreement (along with other admission documentation) pursuant to a durable power of attorney for finance and a durable health care power of attorney (neither of which were recorded at the time that the documents were signed). (Notably, the defendant’s initial evaluation of the decedent showed that he possessed intact mental functioning and was alert to time, place, and situation.)

The Spartanburg County Circuit Court declined the defendant’s motion to compel arbitration of the plaintiff’s wrongful death and survival actions, holding that the decedent’s niece lacked the authority to execute the admission documents upon which the defendant relied.
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In recent years, there has been a trend toward alternative dispute resolution, such as arbitration, in some kinds of cases, including South Carolina nursing home abuse cases.

It is important to note that the reason for this trend is not because injured individuals or the families of those who have suffered a wrongful death have willingly and knowingly decided that they would rather have their legal disputes resolved by an arbitrator rather than by a judge and jury. Instead, many would-be defendants have managed to sneak arbitration clauses into the mounds of documents that must be signed at certain health care facilities. Fortunately, not all such alleged “agreements” are enforceable by the courts.

Facts of the Case

Those who are confined to nursing homes and other long-term care facilities are extremely vulnerable. While it would be nice to believe that these individuals are given the care and treatment that they need and deserve, this is not always so.

Unfortunately, South Carolina nursing home negligence and medical malpractice lawsuits are so commonplace as to barely raise an eyebrow these days. While such litigation cannot undo the harm that was done, sizable settlements and jury verdicts can send a powerful message – a message that may result in better care for those in such facilities in the future.

Facts of the Case

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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