Articles Posted in Nursing Home Abuse and Neglect

There are countless types of legal disputes that can arise from a loved one’s placement in a nursing home facility. Although we trust these facilities to look after our elderly loved ones when we are unable to, sometimes they abuse this trust and engage in negligent or reckless conduct that places our loved ones at risk. The dangers that face nursing home residents include lack of adequate supervision, various types of intentional abuse including physical, emotional, and sexual abuse, and medical malpractice. If your loved one was injured in a nursing home facility or lost his or her life as a result of inadequate care, contact the Asheville nursing home abuse and neglect lawyers at Maurer Law today to learn more about your legal rights and options.

Recently, the North Carolina Court of Appeal was asked to consider an appeal involving a man who fell and died as a result of his injuries while admitted as a patient at a nursing home facility. The administrator of the decedent’s estate brought a claim against the facility alleging that the facility breached its common law fiduciary duty and engaged in professional negligence. The defendants denied the allegations, moved to dismiss the claim, and asserted contributory negligence as an affirmative defense. The plaintiff later moved to amend his complaint to add new information.

The trial court denied the motion to amend, noting that the plaintiff had failed to comply with Rule 9(j) in the original complaint and the proposed amended complaint. Rule 9(j) requires a court to dismiss a complaint alleging malpractice against a healthcare provider unless the complaint provides a statement that an expert witness has reviewed the records and claims and is willing to testify that the defendant healthcare provider’s conduct fell below the standard of care.

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Nursing home abuse can take many forms including physical abuse, financial abuse, emotional abuse, and sexual abuse. Regardless of how it happens, it is one of the most devastating and painful situations for the victim and his or her family. At Maurer Law, our seasoned team of Asheville nursing home abuse lawyers are standing by to assist your family with understanding its legal rights during this time. Although the local authorities may investigate the situation for criminal wrongdoing, the victim and/or his or her loved ones can bring a civil claim to recover compensation from the nursing home facility.

Recently, the North Carolina Court of Appeals considered a case in which an elderly resident at a nursing home facility with dementia alleged that one of the workers had exposed himself to her and engaged in inappropriate touching. The complaint alleged that a certified nursing assistant had assisted the resident back to her room after lunch and engaged in the sexual assault at that time. According to the nursing assistant, however, the aide had escorted the resident back to her room and spent one minute sitting next to the resident for the purpose of calming her down. The resident reported the incident to her personal aide, who arrived at the room soon after the nursing assistant left.

The facility submitted the required 24-hour initial report to the North Carolina Department of Health and Human Services, Health Care Personal Registry and completed an investigation. It concluded that it was unable to substantiate the allegations due to the absence of any witnesses and the resident’s clinical diagnosis of dementia. A physician also determined that the resident lacked mental capacity. The nursing assistant was allowed to return to work and was assigned to a different hall. Other government agencies also investigated the claim and found it to be unsubstantiated.

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Nursing home facilities have a responsibility to provide our loved ones with a certain level of care, support, and attention. When someone at a nursing home facility is injured due to neglect or intentional harm, the outcome is painful and devastating for the victim as well as the family. Arbitration forms are a common tool that these facilities use to try to ensure that these matters are subject to arbitration and not litigation. Fortunately, North Carolina law has made it clear that these agreements are not enforceable in some instances such as when the patient lacked appropriate mental capacity when executing the agreement. If you have concerns about the safety of your loved one living in a nursing home in North Carolina, reach out to the Charlotte nursing home abuse lawyers of Maurer Law as soon as possible.

In a recently filed case, the administrator of a decedent’s estate brought a claim alleging that the operators of a nursing home facility were negligent in providing the decedent care and that he died as a result. The plaintiff in the case, the decedent’s son in law, was named as the decedent’s power of attorney. The complaint included claims for negligence, medical negligence, and corporate negligence among other things. In response to the complaint, the defendant filed a motion to compel arbitration that it later withdrew. The defendants eventually filed another motion to stay the legal proceeding and compel arbitration. The court eventually denied the motion finding that the defendants acted inconsistently in regard to the arbitration agreement and that to allow it to pursue arbitration at this stage would cause undue prejudice to the plaintiff. The defendant promptly appealed the lower court’s decision.

On appeal, the court first noted that public policy favors arbitration because it is an efficient use of judicial resources and allows for the quick resolution of legal disputes. It then reviewed the record and noted that the defendants acted inconsistently regarding the supposed arbitration agreement. In addition to withdrawing the first motion to compel arbitration, defendants’ attorney sent an email to plaintiff’s counsel indicating that the defendants did not intend to move forward with the motion. Although it later reasserted the motion, the plaintiff had incurred expenses in the meantime in the form of litigation fees and related costs. More than 15 months had passed since the defendants first withdrew the motion and asserted it again. The plaintiff also took actions like hiring seven expert witnesses, traveling to attend hearings and other case-related matters, and preparing for deposition, and taking depositions. As a result, the appellate court upheld the lower court’s decision to deny the defendant’s motion to compel arbitration.

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Nursing homes provide an important service in our community, ensuring that elderly individuals with the support and care they need in the end stages of life. But some of these facilities fail to provide adequate care or even allow abuse to happen, including emotional, physical, and sexual abuse. At Maurer Law, we have served countless individuals throughout North Carolina with exploring a potential claim against the nursing home facility that failed to provide care for their loved one. We know how painful and stressful this situation can be and will ensure that your rights are protected to the fullest extent.

In a recent case, the North Carolina Court of Appeal considered a wrongful death claim against a nursing home facility. The administrator of the decedent’s estate brought a John Doe claim seeking subpoena power to investigate a fall that allegedly led to the decedent’s death, alleging that negligence was the cause of the fall. The facility responded by filing a motion to dismiss the complaint and denying the allegations. It asserted that the decedent was contributorily negligent and that it had already satisfied the defendant’s discovery requests seeking the decedent’s medical records.

The plaintiff filed motions to amend and argued that the defendant had not provided enough discovery to assist the plaintiff with prosecution of the case and moved to compel production of documents that it alleged the defendant was withholding. The plaintiff also alleged that he retained an expert who concluded that the nursing home engaged in malpractice and that he wished to add a cause for “nursing home malpractice” to the complaint. The trial court denied the motion to amend the complaint noting that both requests the plaintiff made to amend failed to include a certification of compliance in accordance with Rule 9(j). It also noted that the statute of limitations to add a new cause for medical malpractice had expired.

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Arbitration agreements are a major issue when it comes to nursing home facilities and how patients are able to resolve disputes with the facility. An arbitration agreement requires the parties to send any legal disputes through arbitration instead of the civil justice system. An arbitration proceeding involves a neutrally-selected arbitrator who hears evidence and determines the outcome of the litigation. The results are binding. If you or a loved one were required to sign an arbitration agreement involving a nursing home facility and are now seeking to hold the facility responsible for a personal injury, contact Maurer Law today to learn more about your rights from experienced Charlotte nursing home abuse lawyers.

In a recent case, the plaintiff was a woman who fell when she was 81-years-old resulting in injuries that required surgery. She was then admitted to a rehab facility before being transferred to a long-term patient care facility. The plaintiff was her daughter who was required to sign a form before her mother could be admitted entitled “Business Contract” and which described her as “Responsible Party.” Her mother was listed as the “Resident.” According to the terms of the agreement, the Responsible Party was financially responsible for the Resident’s time at the center. It also contained a seven-part arbitration clause.

The plaintiff’s mother suffered several more falls including a fall that resulted in a broken hip necessitating surgery. She eventually died at the center. The plaintiff filed a personal injury complaint against the center listing negligence, medical malpractice, wrongful death, and a claim under North Carolina’s Statutory and Regulatory Rights Violations statute. The defendant responded with a motion to compel arbitration on the basis that the plaintiff agreed to arbitration when she signed the agreement as the responsible party. The trial court dismissed the motion to compel arbitration and granted dismissal of the plaintiff’s claim under the statute and claim for medical malpractice. The defendants appealed.

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Nursing home abuse victims face some of the most painful physical and emotional injuries. Although the criminal authorities can choose to investigate an incident of nursing home abuse, the victim can also bring a civil claim against his or her abuser to recover compensation for his or her injuries. As seasoned North Carolina nursing home abuse attorneys, we have the knowledge and experience necessary to ensure that you are treated fairly and respectfully during this painful and stressful situation.

In a recent case, the North Carolina Court of Appeals considered a claim in which the plaintiff appealed from a dismissal of her complaint alleging that a nursing home facility was responsible for injuries that her mother received while her mother was in the facility’s care. The lower court dismissed her action on the basis that she did not name the right defendant in the lawsuit.

According to the complaint, the facility where the mother was admitted for respite care attempted to move her using a lift. The plaintiff alleged that the facility was negligent in operating the lift, causing her mother to suffer injuries. In her complaint, however, the plaintiff named another company as the defendant. Instead of answering the complaint, the named defendant filed a motion to dismiss and provided information seeking judicial notice of public records showing that it did not own or operate the facility. The documents were the business organization papers for the company that did own the facility.

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In a recent North Carolina nursing home case, the defendants appealed a lower court’s order denying their motion to compel arbitration against a plaintiff who brought a lawsuit in her representative capacity as administratrix of her mother’s estate.

The appellate court explained that the plaintiff’s forecast of evidence tended to show that her mother fell in 2007, and due to the fall, she needed surgery. She was admitted to the defendant’s rehab center, where she stayed as a long-term patient under the rehab center’s case.

The defendants required the plaintiff’s mother to sign a form as a precondition to her admission. The contract designated the mother as the “resident” and the plaintiff as the responsible party. The plaintiff signed the admission paperwork and accepted financial responsibility for the mother’s time at the rehab facility. A Special Power of Attorney form was referenced, noting that the resident had appointed the plaintiff as the responsible party. Additionally, a seven-part arbitration clause was signed.

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In a 2016 nursing home negligence case, the plaintiff appealed from a dismissal of claims arising from her mother’s death. The case arose when the mother died in a nursing facility after suffering a fall. Her sister wouldn’t authorize treatment for the injuries from the fall. Her condition worsened, and eventually she died. Her daughter brought a nursing home negligence and wrongful death lawsuit.

She didn’t attach a Rule 9(j) certification to her nursing home negligence complaint. The defendants asked the trial court to dismiss the plaintiff’s lawsuit. The court dismissed the plaintiff’s claims for failing to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure, which applies to medical malpractice lawsuits, determining that all of the claims constituted medical malpractice, and therefore, the doctrine of res ipsa loquitur did not apply.

On appeal, the plaintiff argued that Rule 9(j) didn’t apply because she wasn’t suing for medical malpractice. The appellate court found that some of the claims were for medical malpractice, while others weren’t, and they arose out of the defendants’ actions after the mother’s death. The 11 claims in the complaint were labeled as wrongful death, medical negligence, negligence, loss of sepulcher, contractual breach, fiduciary duty breach, bad faith, elder abuse, emotional distress of the decedent’s survivors, pain and suffering, and conspiracy. The appellate court determined that some of these claims had to do with the conduct of the defendants before the mother died, and others were related to actions taken after the mother’s death.

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