In a recent case, a state supreme court had to decide whether an arbitration agreement, governed by the Federal Arbitration Act and entered into by a nursing home patient and her power of attorney, was enforceable against her husband after he brought a wrongful death action. The man brought a lawsuit against a nursing home after his wife died at the home, alleging that the home was negligent in the care of his wife and that this negligent treatment caused her death. The nursing home responded by arguing that the case had to be resolved through arbitration, and the trial court agreed. The plaintiff appealed, claiming that he could not be bound to his wife’s arbitration agreement as a wrongful death beneficiary.

Signing ContractAt the time the wife was admitted to the nursing home, she had executed a power of attorney in favor of her husband. Her husband then signed an arbitration agreement, stating that claims subject to arbitration included any claims arising out of her stay at the home. The agreement also stated that it applied to the patient and the nursing home, as well as the parties’ successors, assigns, and intended and incidental beneficiaries. It also stated that it applied to “any parent, spouse, child, executor, administrator, heir, or survivor entitled to bring a wrongful death claim.”

Considering the language in the contract and other similar cases, the court found the arbitration agreement did bind the woman’s beneficiary. Thus, the agreement required him to resolve the claim through arbitration, and he could not bring the claim in court.

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In a recent case, a mother sued her daughter’s doctor after her daughter overdosed on a combination of prescription and non-prescription pills. The daughter died on May 18, 2013 after she took a lethal combination of pills. On May 15, 2015, the mother filed the claim against her daughter’s doctor, alleging that the doctor negligently prescribed her daughter a combination of opiates and sedatives, causing her death. The claim was filed three days before the claim’s two-year statute of limitations expired.

Random PillsThe doctor argued that the complaint should be dismissed because the woman failed to file a certificate of merit along with the complaint. State law requires plaintiffs in medical malpractice claims to file a certificate of merit at the time the complaint is filed. The certificate of merit has to state that the attorney or the plaintiff certifies that the person has consulted with a qualified health care provider, and the health care provider described the standard of care required, indicated that it was reasonably likely that the plaintiff would be able to show the defendant failed to meet that standard, and indicated that it was reasonably likely that the plaintiff would be able to show that the defendant’s failure to meet the standard caused the plaintiff’s injury. Since the mother did not file the certificate of merit at the time she filed the complaint, the mother subsequently filed a motion to amend the complaint to add a certificate of merit. However, the trial court rejected her motion and dismissed the case.

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Nursing home residents are protected from abuse by fellow residents under Illinois law and federal law. Illinois’ Nursing Home Care Act (NHCA) protects residents from any intentional or negligent act or omission that causes an injury to a resident. This includes abuse committed by staff members, as well as abuse committed by other residents. If a nursing home fails to protect a resident from abuse by another resident, the nursing home may be liable for this failure.

WalkersSex Offender Accused of Abusing Fellow Resident After Recent Release from Prison

According to a local news report, a convicted sex offender is accused of assaulting a fellow resident at a nursing home in New York. The accused resident is a 62-year-old man who was recently released from prison after serving 20 years for robbery and sexual abuse. His past history involved targeting elderly women. According to the allegations, the man entered a fellow resident’s room at night, pulled off her blanket, and molested her. He is also alleged to have touched other female residents before this incident.

A state official responded to the incident and questioned whether the state’s department of corrections communicated with the nursing home. The department of corrections said it had informed the nursing home that the man was a level-three sex offender. However, the nursing home said that it was not told of the man’s conviction until he was admitted and that they learned of it only after the police visited the facility. The home also said it could not immediately discharge him after it found out about his past because it was required to find another facility to take him before they discharged him. According to the report, after the nursing home found out about the man’s past, staff monitored him every 15 minutes and later supervised him full-time. After the alleged assault, the man was released to the state health department and police.

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In a recent case, a court decided that a resident’s estate could not be compelled to enter arbitration, even though the deceased resident’s daughter had signed an arbitration agreement on her behalf. When the resident was admitted to a nursing home, her daughter accepted a health care proxy designation on her mother’s behalf, but the mother never executed a durable power of attorney for her daughter. The daughter then signed the home’s admission agreement, which included an arbitration agreement. The arbitration agreement stated that the arbitration agreement was voluntary and that failing to sign the arbitration agreement would not affect a resident’s ability to stay at the facility.

ContractThe nursing home admission agreement defined a legal representative as a person who has authority to act on the resident’s behalf under independent legal authority, such as a guardian or a power of attorney. The mother was not competent at the time the documents were signed. The daughter signed the admission agreement as her mother’s “legal representative” and signed the arbitration agreement under the line designated for a “resident/representative signature.” The daughter signed the documents so that her mother could be admitted to the home.

After the mother died while in the care of the nursing home, the mother’s estate brought a claim against the nursing home, alleging that the home caused the mother injuries that resulted in her death. The nursing home responded by arguing that the case had to be resolved in arbitration, pointing to the arbitration agreement signed by the resident’s daughter. The trial court found that the mother was not competent at the time the admission agreement was signed and that the daughter signed as her legal representative, so the case had to be resolved in arbitration. The mother’s estate appealed.

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Americans are living longer today than in the past, which means that many families are forced to place a loved one under the care of a nursing home. Unfortunately, not all residents receive the care they deserve at nursing homes. Some residents are not sufficiently fed or cleaned, and some are subject to serious abuse, including starvation and sexual abuse. In addition, due to age and/or mental impairments, nursing home residents often are unable to report abuse.

Camera LensMany nursing home cases result from negligent care of residents, but some cases arise from intentional abuse from staff. In cases in which a person acts with the intent to cause harmful or offensive contact with another person, and contact results, it constitutes battery. Assault also results in most cases, which arises from the person’s apprehension of imminent contact. In cases of intentional abuse from a nursing home staff member, assault and battery can often easily be established with the right evidence. However, it can be difficult to prove abuse in nursing home cases, because the abuse usually occurs outside the presence of independent witnesses, and residents are often developmentally impaired and cannot explain what occurred.

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Although concerns for nursing home residents often arise based on allegations of abuse by staff members, other residents can also be perpetrators of abuse. Of course, residents live together in one facility and will often interact, but a nursing home has an obligation to protect its patients—even from other residents.

The Nursing Home’s Duty to Prevent Abuse

Nursing homes have a duty to keep their residents safe and prevent abuse, including abuse from other residents. If one resident is being abusive towards other residents, then the resident should be controlled, and removed if necessary. There are also a number of ways nursing homes can help prevent abuse, for example by creating more private spaces for residents, improving lighting, ensuring proper staffing, and taking action when residents engage in abusive behaviors. If a nursing home fails to take an issue seriously, it may liable for injuries that could have been prevented.

Old WomanAll residents have the right to live in a safe environment. Mistreatment against residents can come in the form abuse, neglect, or exploitation. Abuse can include physical, mental, verbal, and sexual abuse. Neglect is the failure to provide proper care to a resident. Exploitation means the illegal or improper use of a resident’s money or belongings.

Federal nursing home regulations provide residents with certain rights, including the right to be free from abuse, neglect, and exploitation, to be treated with dignity and respect, and to have security of personal possessions. The facility is required to have policies and procedures that prohibit abuse, neglect, and exploitation, to investigate and report all allegations of abuse, and to protect residents from mistreatment.

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Many people assume that since lead paint is no longer legal, there is nothing to worry about. However, although lead paint has been banned since 1978, many homes still have lead paint underneath the current coat of paint.

Paint CanA Landlord’s Duty to Tenants

A landlord has a duty to tenants to keep the property in a certain condition and to make certain disclosures to tenants. If a home was built prior to 1978, renters must receive a lead-based paint pamphlet and any known information about the presence of lead-based paint. In Illinois, a landlord also has a special duty to minors. A landlord may be liable for injuries if the landlord knows or has reason to know that minors frequent the premises, there is a dangerous condition, minors are likely to be injured based on their failure to appreciate the risk, and the expense of remedying the condition is slight compared to the risk to minors.

Lead Paint Poisoning Claims

Generally, lead poisoning cases are based on the theory of negligence. Claims may include a negligent failure to maintain safe premises, negligent misrepresentation, and negligent repairs. Plaintiffs may also be able to assert a breach of the covenant to repair and the implied warranty of habitability, as well as fraud and product liability claims, among others.

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Never Events in Nursing Homes

Nursing home residents are at a particularly high risk of being victims of a never event, due to the lack of oversight present in most nursing homes. Unlike doctor’s offices or hospitals, nursing homes are not frequented by guests, and the residents often have limited contact with the outside world. This creates a situation in which there is little oversigHospital Bedht, which allows for less-than-diligent staff members to cut corners when it comes to a resident’s care.

Perhaps the most common never events that occur in nursing homes are bed sores. A bed sore, also known as a pressure ulcer, is a skin condition that can develop, usually over a bony area, when too much consistent pressure is applied to the skin. Bed sores are most common among nursing home residents who are immobile. Nursing home staff should take extra precautions to ensure that immobile residents do not lie in the same position for hours at a time, and they should move or roll residents to prevent bed sores. Stage III and IV bed sores have been considered a never event by the Center for Medicare and Medicaid Services (CMS) for the past 11 years.

CMS is part of the Department of Health and Human Services and oversees two of the largest medical programs in the country, covering millions of Americans. One of the many functions that CMS plays is to help develop medical standards across the industry in hopes of providing better care.In pursuit of providing better and more effective medical care, CMS routinely updates a list of “never events.” Never events are “errors in medical care that are clearly identifiable, preventable, and serious in their consequences for patients, and that indicate a real problem in the safety and credibility of a health care facility.” These never events span the range of medical providers, including doctor’s offices, surgeons, clinics, and nursing homes.

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In a recent case, an Illinois appellate court recently decided that a nursing home was required to turn over certain documents in a medical negligence lawsuit after a resident fell at the nursing home. The resident in the case was an 88-year-old woman who was allegedly injured in a fall while she was a resident of the home. The plaintiff, who was the patient’s guardian, filed a claim on behalf on the patient’s behalf and was trying to get a copy of an internal report from May 2012 after the patient’s fall at the home.

glassesThe nursing home argued that the internal documents concerning the patient’s fall were protected under the Illinois Medical Studies Act and under the Long-Term Care Peer Review Act and Quality Assessment and Assurance Protection Act.

The Quality Assurance Act and the Medical Studies Act

The Quality Assurance Act protects proceedings and communications involving a peer review or a quality-assessment-and-assurance committee at long-term care facilities. The Medical Studies Act is a similar act that also protects peer-review proceedings and communications but applies to medical facilities. The laws protect certain information in order to encourage internal studies to improve care for patients.

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Nursing home abuse often goes unreported due to the patient’s mental health and vulnerability. It can be difficult to detect abuse or neglect because family members are not present 24 hours a day. It also can be difficult to prove allegations of abuse because the nursing home resident may be unable to testify due to mental health issues such as dementia, or because the resident is no longer alive. That being said, there are laws that protect the rights of residents in order to protect them from cases of abuse or neglect, and anyone suspecting a loved one is being abused in an Illinois nursing home should consult with a dedicated personal injury attorney.

Woman in WheelchairProtections for Nursing Home Residents

There are different statutes and regulations that protect the rights of senior citizens and nursing home residents. A central statute in Illinois is the Nursing Home Care Act (NHCA). The Act establishes a resident’s “bill of rights” and creates a system to resolve claims under the Act. Under the NHCA, nursing homes are liable to residents for any intentional or negligent act or omission that causes an injury to a resident. Neglect is defined as a facility’s failure to provide adequate medical care, mental health treatment, psychiatric rehabilitation, personal care, or assistance with activities of daily living necessary to avoid physical harm, mental anguish, or mental illness for a resident.

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