Nursing Home Abuse

Published on: September 27, 2024

California Nursing Home Arbitration Agreement Not Enforceable for Wrongful Death Claims

Many California nursing homes ask residents or their family members to sign arbitration agreements as a part of the admissions process. These agreements purport to mandate arbitration instead of litigation when disputes arise. Some nursing homes try to force people into arbitration over nursing home abuse claims. However, arbitration agreements must be valid, enforceable, and conscionable to be enforced. In Maxwell v. Atria Management Company, LLC, Cal. Ct. App. Case No. A168043, the Court of Appeal decided whether a trial court’s denial of a motion to compel arbitration was valid when two adult children held separate powers of attorney and there were questions about whether the agreement was properly executed.

Factual and Procedural Background

Trudy Maxwell lived in Atria Park, a nursing home operated by Atria Management Company, LLC in San Mateo. In 1999, she had signed a durable power of attorney that named her husband as her agent-in-fact with her son, James Maxwell the III, named as the successor, and Marybeth as the second successor in the interest of the DPOA. In 2005, Trudy signed an advanced healthcare directive in which she named her husband as her agent-in-fact for healthcare decisions and listed her son, James Maxwell III, as the first alternate and her daughter, Marybeth, as the second alternate.

Published on: April 14, 2015

Physical and Sexual Abuse in California Nursing Homes

by Steven M. Sweat

Physical and sexual abuse in California nursing homes, assisted living institutions and adult day care facilities is still a huge problem. Elder abuse is a silent epidemic that’s prevalent in nursing homes and long-term care facilities in every city and state. According to the National Center on Elder Abuse, 3.2 million Americans spent time in nursing facilities in 2008. Within the next few decades, some 5 million aging adults will move into assisted living and long-term care facilities. Even now, millions of moms, dads, aunts, uncles, grandparents and loved ones risk being abused by their caretakers. This is one problem that’s not going away or getting better. Experts have called elder abuse one of the greatest law enforcement challenges of the 21st century. The statistics on the issue are shocking.

• One in three nursing facilities was cited for multiple violations that caused harm or had the potential to harm residents.

• Fewer than 2 percent of certified nursing facilities had no violations.

Published on: February 27, 2015

California Appellate Decision on Nursing Home Abuse Claims

by Steven M. Sweat

In a recent California Court of Appeal decision, Lemaire v. Covenant Care California, LLC, the court struck down a jury verdict in favor of the plaintiffs in a blow to patient’s rights. My insight in this decision is as follows:

Facts of the Case:

Patient, Laura Clausen, suffered a stroke and was admitted to a skilled nursing facility in California run by Coventant Care. While in their care, she later died. Her daughter brought an action against the nursing home alleging chronic understaffing causing substandard medical care. She further alleged in the lawsuit that the nursing facility was in violation of California Health and Safety Code 1430(b) in failing to maintain clear and legible notes in the patient history records including notes of “how the patient responds, eats, drinks, looks feels and reacts.” Plaintiff was awarded $270,000 as statutory damages under 1430(b)) and $841,842 in attorney fees along with $26,327.45 in costs. Covenant Care California, LLC appealed this award.