INSIGHTS On Massachusetts Personal Injury Law

Welcome to the SUGARMAN blog. We'll be sharing our perspectives on the state of the law and current legal issues in Massachusetts personal injury law. Issues relating to medical malpractice, construction site injuries, premises liability, product liability, motor vehicle accidents, insurance, and more will all be reviewed here by our team of lawyers who have prosecuted some of the most complex cases in Massachusetts personal injury law.

Articles Posted in Nursing Home Liability

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Last week, in Johnson v. Kindred Healthcare, Inc., et al., the Massachusetts Supreme Judicial Court addressed an important case involving the use of arbitration agreements by nursing home facilities and the ability of health care agents to enter into such agreements on behalf of a patient.

By way of background, many nursing and long-term care facilities require that a resident/patient agree to arbitrate disputes arising from the care or treatment at a facility as a precondition to the resident’s stay. Arbitration clauses, which are often enforceable, effectively waive an individual’s right to bring a dispute in court in front of a jury. Under Massachusetts law, a patient may appoint someone, a “health care agent”, whom he or she trusts, to make health care decisions on his or her behalf. According to the statute governing health care proxies, M.G.L., ch. 201D, §5, a health care agent may “make any and all health care decisions on the principal’s behalf that the principal could make, including decisions about life-sustaining treatment, subject, however, to any express limitations in the health care proxy.” At issue in the Johnson case was whether or not the decision to enter into an arbitration agreement constituted a “health care decision” within the meaning of the statute.

The plaintiffs in this case were the administrators of the estate of Dalton Johnson. Prior to his admission to the defendants’ nursing home, Mr. Johnson had executed a health care proxy and named his wife as his health care agent. Shortly after her husband first entered the defendants’ facility as a resident, Mrs. Johnson signed an arbitration agreement while acting as her husband’s health care agent. During the course of his care at the nursing home, Mr. Johnson was badly burned and later died as a result of his injuries. The plaintiffs filed a wrongful death/personal injury lawsuit against the defendants (who included owners, operators, and employees of the nursing home), alleging that they were negligent and responsible for Mr. Johnson’s death. The defendants thereafter sought to enforce the arbitration agreement.

The plaintiffs argued that the arbitration agreement Mrs. Johnson had signed was not a “health care decision” under Massachusetts law, and though she was authorized to make health care decisions for her husband, Mrs. Johnson had no authority to enter into the agreement on her husband’s behalf. The defendants argued that, under the health care proxy statute, “health care decisions” should be broadly defined and should include the ability to decide whether to enter into an arbitration agreement to resolve disputes. A Superior Court judge held that Mrs. Johnson’s decision to enter into an arbitration agreement was a health care decision, and was binding. The plaintiffs appealed and the Massachusetts Supreme Judicial Court reversed the lower court’s decision.
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Governor Deval Patrick recently signed legislation, An Act relative to Special Care Units (SCU) in long-term care facilities, which establishes minimum care standards at dementia special care units and nursing homes.  The legislation will provide dementia-specific training for direct-care workers, activity directors and supervisors in traditional nursing homes and special care units.

Prior to this enactment, there was a loophole in Massachusetts law which allowed nursing homes to advertise specialized Alzheimer’s and dementia care units even though their workers may not have had specialized training or therapeutic programs for such residents. Massachusetts was previously in a minority of states that did not have such requirements; a 2005 federal report noted that 44 states (excluding Massachusetts) at that time had requirements governing training, staffing and security for facilities that provided dementia care.

Pursuant to the legislation, the Department of Public Health will work with the nursing home industry and the Alzheimer’s Association to identify minimum safety and quality standards for dementia care in long-term facilities.  The new regulations will also govern the physical design of such units so as to mitigate wandering and boost therapeutic value to residents.

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Previously, Sugarman provided a general overview of Federal and State Whistleblower Claims and the Massachusetts False Claims Act. In Part 3 of the blog series, Sugarman Partner David McCormack explores the Massachusetts Whistleblower Statute protecting health care whistleblowers from retaliatory action.

In the context of health care and in furtherance of the aims of the Massachusetts False Claims Act, the Massachusetts legislature has enacted M.G.L. Chapter 149, Sec. 187. This statute makes it unlawful for a health care facility to refuse to hire, terminate or take any retaliatory action against a health care provider who “discloses or threatens to disclose” a practice of the health care facility that the provider “reasonably believes is in violation of a law or rule or regulation . . . or [is in] violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health.” Essentially, the statute provides protection to any Massachusetts health care whistleblower from retaliatory action by a health care facility. This statute would conceivably provide protection for any health care whistleblower who, through his attorneys, files a qui tam action pursuant to the Massachusetts False Claims Act.
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Nursing Home Liability for Patient Neglect

Discussion on the quality of care in America’s nursing homes. A must read for all with family members in intermediate care.

Nursing homes and other skilled nursing facilities are entrusted with the duty to take care of our elderly and disabled family members. These licensed skilled nursing  facilities are required to follow regulations as to the quality of patient care they provide.  Unfortunately, it has been reported for a period of over two decades that many of these institutions are failing to meet these safety standards. At SUGARMAN, we have seen the tragic results of these failures – bed sores, falls, overmedication and dehydration, to name but a few examples, which have resulted in disabling injuries and even death.  Although nursing home liability cases are often defended on the grounds that damages are limited because the injured person has exceeded his or her statistical life expectancy, the focus in these cases is properly on the dignity of the patient – regardless of age – and the failure to deliver that quality of care to which the patient, and all patients in skilled nursing facilities, are entitled.

According to the U.S. Bureau of the Census, over 5% of the 65+ population currently resides in nursing homes or other skilled nursing  facilities. Of the baby boom generation, it is expected that 5% or 3.9 Million people will eventually be cared for by these facilities on either a short or long-term basis.  It is critically important that we focus on the ongoing care deficiencies in nursing homes so as improve the overall quality of care before the nursing home resident population explodes.
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