Articles Posted in Nursing Home Abuse

A Florida appellate court recently released an opinion in a case involving the potential wrongful death of a nursing home resident. The deceased individual was admitted to the nursing home in April 2013. On the day after her admittance, the woman’s daughter signed and accepted the position of “health care proxy” on behalf of her mother. Although this proxy was signed, the plaintiff’s mother never executed a durable power of attorney in her daughter’s favor.

ContractWithin the first week of the resident’s admittance, her daughter signed a voluntary arbitration agreement. This agreement outlined what a legal representative was, and the daughter signed in the space designated for a legal representative’s signature. Importantly, the agreement stated that the nursing home could not require a person to sign the agreement unless the person had legal access or physical control of the resident’s income and resources.

Unfortunately, at some point after her admission, the resident sustained injuries that resulted in her death. The plaintiff, the resident’s estate, then filed a lawsuit against the nursing home. The nursing home responded by filing a motion to dismiss, attempting to compel arbitration. The trial court found the arbitration agreement was valid and granted the defendant’s motions.

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Earlier this May, the Supreme Court of the State of Washington released its opinion in a tort claim originating from a tragic death back in 2009. According to the court’s opinion, an elderly woman died from morphine intoxication while she was residing at an adult family home. After the woman’s death, the family’s representative brought a lawsuit against several individuals who were involved in the care of the elderly woman, including the nursing services company that employed the nurses.

Old Man's HandSpecifically, the family claimed that two nurses saw the signs of abuse but did not report them to the Department of Social and Health Services. At trial, the defendants moved to dismiss the case, claiming that the state statute did not automatically create a cause of action against those who  fail to report abuse, even if they are mandatory reporters. The trial court and the Court of Appeals both agreed. However, the plaintiffs appealed the suit to the Supreme Court.

The Supreme Court reviewed the state statute and held that the act does in fact create a private cause of action against those mandatory reporters who fail to report neglect or abuse. Furthermore, they found that there was a genuine dispute of a material fact, and therefore the lower court should not have granted summary judgment in favor of the defendants.

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Earlier this year in the case of Cecil v. Skilled Healthcare, the New Mexico Court of Appeals made a ruling that allowed a plaintiff’s negligence and wrongful death lawsuit against a nursing home to proceed, rejecting a clause in the nursing home contract that mandated all claims be addressed only through arbitration. As a result of this ruling, the family of a man who died while in the care of the nursing home will be able to have their claims heard by the state court and potentially given the opportunity for a jury to find the defendants liable for the death of their loved one.

courtroom-1-1207444-m.jpgArbitration Agreements in Nursing Home Contracts
Many nursing home residency agreements require a prospective resident to agree that any civil claims against the nursing home can only be resolved through arbitration. Arbitration is an alternative form of dispute resolution in which the parties agree to have their dispute heard by an arbitrator, which is a private party that takes the place of the courts. In arbitration, the parties argue their cases in a court-like environment, and the decision of the arbitrator is final and enforceable, as if it were a court order. If a plaintiff has agreed to an enforceable arbitration clause, he or she must file any claim with the arbitrator and follow the rules and procedures of the arbitrator.
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New Mexico hospitals are where you want to be when injured or sick, however, they are also capable not of helping heal you, but rather causing an infection. Many infections, are called a risk-of-the-procedure, meaning there may be no legal basis to pursue a case. However, some hospital infections are different an entirely preventable.

Considering such hospital infections are a top 10 cause of death in America, preventing future infections is a true development in medicine. By the same token, it means that infections should no longer be the risks they used to be and that hospital infections should no longer benefit for legal loopholes as they have in the past.

The New Mexico Health Department has recently joined a movement to track infections with a goal of minimizing patient risks. Simultaneously, a recent advisory committee is recommending New Mexico Hospitals be required to report infection rates. Local hospitals that have expressed a level of participation in the movement include: University of New Mexico Hospital in Albuquerque, as well as Lovelace in Albuquerque and Rio Rancho.

Prior beginning a career in New Mexico personal injury law, I spent some time handling criminal cases. While there is certainly an assortment of sad stories and gruesome crimes, perhaps none were as difficult to stomach as child abuse. When it comes to New Mexico child abuse cases, a recent story is perhaps more disturbing than most any other.

The incident occurred at Camelot of New Mexico when a staff member began kneeing an autistic child in the head repeatedly. The facility was built to care for and protect such special needs children, and what occurred reflects a gross disregard for the safety of patients.

Unfortunately, the story does not end there. Supposedly the mother of the victim released a statement indicating she was “happy” with her son’s medical care. When questioned on her statement the mother indicated that somebody hired by Camelot made it seem as though she had prepared statement.

Albuquerque medical malpractice verdicts are hard to come by. Heck, New Mexico medical malpractice lawyers will tell anyone that these case are some of the most hardly fought for anywhere in New Mexico. It is because of this that a recent New Mexico Court of Appeals decision is rippling through the state.

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A while ago there was a large multi-million dollar jury verdict that was awarded in a New Mexico nursing home abuse case. The decision set various records and sent a strong message to New Mexico nursing homes on how that had to treat their patients. The case was reversed on what some may consider a legal technicality, while other may recognize as a material issue. As a result of the appellate court’s ruling, the massive verdict has disappeared like a David Copperfield assistant.

The claim was based on part on the trial court’s ruling that the nursing facility, under a legal theory of agency, was responsible for the conduct of the nursing home staff. Rather than present this particular issue to a jury, the trial judge decided that it was essentially an issue of law rather than fact. Unfortunately, the New Mexico Court of Appeals thinks differently and has ruled that the jury should have been allowed to decide if the New Mexico nursing home was responsible for the conduct of every staff member. As a result of the decision, the multi-million dollar verdict is gone, and the case is back to where it was years ago.