Boston Personal Injury Attorney Blog
The Massachusetts Attorney General this week announced settlements with seven nursing homes over the deaths of five residents.
One nursing home operator has been banned from participating in state-run healthcare programs for a period of seven years, while others agreed to fines ranging from $30,000 to $200,000 and will undergo retraining of staff. But the settlement falls short of criminal prosecution, which safety advocates contend needs to occur to hold large for-profit nursing home operators accountable for the health and safety of residents.
The Worcester Telegram reported more nursing home closures are expected across Massachusetts. Currently more than 400 Massachusetts nursing homes operate 45,000 beds. About 20 Massachusetts nursing homes closed last year.
The aging Baby Boomer population, consolidation of the industry into a few large for-profit nursing home operators, and a lax regulatory and oversight environment have created a perfect storm in the American nursing home industry. As our nursing home abuse attorneys in Massachusetts reported last year, instance of nursing home mistreatment or neglect can be even more likely at these for-profit facilities.
Reduced Oversight Increasing Nursing Home Risks
National Public Radio reported this month that the Trump Administration is reducing the size of fines imposed on nursing homes for health violations. Federal records indicate fines for violations found to have endangered or injured residents average about $28,000 last year, down from more than $41,000 during President Obama’s final year in office.
Instead of issuing per-day financial penalties, which induces nursing facilities to remedy safety issues as quickly as possible, the Trump Administration has relied on single fines for violations in about two-thirds of cases. The Trump Administration has also granted an 18 month delay in penalties for violation of eight new health and safety rules and has rolled back protections barring facilities from preemptively requiring residents to submit to arbitration, rather than settling disputes in court.
Forced arbitration agreements are of particular concern to patient rights advocates and our Massachusetts elder abuse attorneys. Rather than improvement the quality of services, large nursing-home operators have sought to reduce their exposure to civil nursing home neglect and abuse lawsuits by coercing residents and their families into signing arbitration agreements at the time of admission. In many cases, forcing a signature can negate protections afforded the home under the agreement. In other cases, when a resident’s loved one signs on a resident’s behalf, a resident may be legally determined to have not forfeited his or her right to justice in the court system. And in still others, a nursing home’s actions and resulting liability may surpass the legal protections of such agreements.
In each case, a Massachusetts nursing home abuse lawyer should be consulted to best determine the rights of a patient and family.
Mass. Gen. Laws Chpt. 19A, §§ 14-26 Abuse of Elderly Persons protects seniors in Massachusetts from abuse. Under civil law, Massachusetts nursing home neglect and abuse may involve legal theories of personal injury, wrongful death, medical malpractice, and/or premises liability. Each relies at least in part on proving negligence, which in Massachusetts is recognized under both statutory law and common law. Common law is derived from the legal opinions of judges handed down by the Massachusetts appellate courts and the Supreme Judicial Court.
The four essential elements of proving a negligence claim are that a defendant owed a duty of care, breached that duty, that victim was injured and suffered damages, and that the injury was caused by defendant’s breach of duty. For example, it’s not enough to prove a resident fell and was injured in a nursing facility, even if a loved one was put in the facility so that professional staff could reduce the risk of fall injuries. Rather, the staff must have acted or failed to act in a way that deviates from the accepted standard of care, resulting in the resident’s injuries.
Rising Risks of Elder Neglect and Abuse in Massachusetts
The nursing home industry is facing severe financial and demographic challenges that have led to “cutting corners.” Shortages in staffing or substandard training is also affecting the level of care seniors receive.
In Massachusetts, the government settlements were reached with Oxford Rehabilitation and Healthcare Center in Haverhill, Jewish Nursing Home of Longmeadow, Woodbriar Health Center in Wilmington, Beaumont Rehabilitation and Skilled Nursing Center in Westboro, Braemoor Health Center in Brockton, Wakefield Center in Wakefield and The Rehabilitation and Nursing Center at Everett. Synergy Health Care, which operates the Brockton and Wilmington facilities, will also be barred from doing business in Massachusetts for seven years.
While it remains enormously profitable, the nursing home industry is facing a number of challenges, including ongoing cuts to federal and state funding, and changing health-care options and attitudes about using services like in-home health care to age in place.
A report by the Patriot Ledger revealed more than 190 nursing homes in Massachusetts have closed during the past 20 years. Understaffing and high turnover remain significant issues as cuts to Medicaid and Mass Health continue to impact the bottom line. The problem may be particularly acute in Massachusetts, where the outdated rates mean reimbursements don’t account for inflation, health-care cost increments for employees, or the rising minimum wage.
Our Massachusetts personal injury and wrongful death attorneys take very seriously our obligation to protect seniors from instances of elder neglect and abuse. The observations and reports of families and loved ones who visit nursing home facilities are the primary means of determining the condition of these facilities and the health and welfare of residents. If you have concerns, you should take them seriously and seek help in determining the best course of action.
If you are dealing with a case of suspected nursing home neglect or abuse in Massachusetts, call Jeffrey Glassman Injury Lawyers for a free and confidential consultation– (617) 777-7777.
Additional Resources
Care Suffers As More Nursing Homes Feed Money Into Corporate Webs, Dec. 31, 2017, By Jordan Rau, Kaiser Health News
More Blog Entries
Report: Nursing Home Neglect Higher in For-Profit Facilities, March 3, 2018, Jeffrey Glassman Injury Lawyers