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Medical Malpractice and Nursing Home Abuse

A Recent Article Discusses New Rules that Now Require Physicians to Take More Aggressive Actions to Ensure That Surrogates are Proper Candidates to Carry an Embryo to Term

Thursday, October 01, 2020

In 2016 a family represented by Berman, Sobin, Gross, Feldman and Darby successfully presented their case to a Montgomery County jury. Their claim was somewhat novel. The plaintiffs, a married couple, could not conceive and decided to utilize the services of a surrogate to carry their own embryo. They counted on their fertility doctor to screen the surrogate's medical history to make sure she was an appropriate candidate to carry their baby to term. The surrogate (who was paid a substantial fee to carry the embryo) lied about her medical history, hiding facts that would have excluded her as a surrogate.

The couple's fertility doctor never reviewed the surrogate's medical record which would have revealed her history of having preeclampsia and excluded her as a surrogate. Instead the doctor accepted the surrogate's word regarding her medical history, despite the fact that the surrogate had a financial incentive to lie. Thus the doctor told the couple that the surrogate was cleared. Based on this assurance, the couple implanted their embryo into the surrogate who then developed preeclampsia resulting in the baby being born at 25 weeks.

The baby died 3 weeks later. The jury awarded a record $44.1 million verdict (later reduced to a significantly lower amount due to Maryland's tort reform limits on recoveries). This case, as the attached article demonstrates, helped set new rules that now require physicians to take more aggressive actions to ensure that surrogates are proper candidates to carry an embryo to term.

Attorney Michael Feldman

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Michael Feldman

Nursing Homes & Pressure Ulcers: An All Too Common Pairing

Wednesday, April 24, 2019

Bed Sores. Pressure ulcers. Pressure sores. Decubitus ulcers. Different names for the same sinister, often painful skin condition. Bed sores, unfortunately, occur far too frequently in the nursing home/long term care setting—often because of negligence. Bed sores are caused by pressure against the skin’s surface for a long period of time. Pressure from firm surfaces such as mattresses can cause decreased circulation and skin breakdown. Because long, continued pressure can result in bed sores it is important that nursing homes and hospitals take the appropriate precautions to avoid bed sores.

But how? Bed sores are often avoided when the nurses change the resident’s position frequently, use pressure relieving pads and devices, and using specialty mattresses that oscillate and otherwise reduce pressure.

In the elderly, avoiding bed sores is critical because they can be very difficult to treat and heal once they form. Once formed, the bed sore must be staged by the health care providers. Often forming in the buttocks and tailbone area, sores are assessed by a health care professional and are “staged.” There are four stages, depending on how deep the wound is and how much tissue is involved. Once formed, the nursing home and its doctors and nurses have an obligation to appropriately stage and treat that ulcer.

In my practice, unfortunately, I am consulted by clients that have the worst form of pressure ulcer—Stage 4. The stage four pressure ulcer represents extensive destruction, tissue necrosis, or damage to muscle, bone, or supporting structures. The pressure ulcer requires extensive, exacting care. In stage four ulcers, there may be a deep crater in the sore with significant drainage and pus. A foul odor may be present, and the tissue surrounding the area may be dark purple or black.

If your loved one has reduced mobility and isn’t able to get around like they once did, you need to be aware of the risk factors for developing a pressure sore and avoid its development at all costs. Health care providers also have an obligation to prevent and, if they develop, treat bed sores.

If you have any questions about nursing home care or elder abuse, please feel free to contact me in the office at 410-769-5400. I am always happy to assist with these

Call or email me with your questions:
Jason Penn

Nursing Home: Selection & Read the Fine Print

Wednesday, April 10, 2019

In my previous post "Doing your Homework can help avoid injury", I discussed the need for making an informed, well-researched choice when selecting a nursing home. After selecting a nursing home and determining that it can provide your family member with the care they need, take extra time to read the admission and other documents very carefully. Why? Because there is a massive effort to deny your legal rights!

Many companies, including nursing homes, have inserted “arbitration clauses” into their contracts. Effectively, an arbitration clause precludes the right to a civil trial in cases involving allegations of wrongful death, medical malpractice, elder abuse, rape and other significant crimes. Arbitration clauses are everywhere! If you have used a credit card, rented a car, shopped online, applied for a job or opened a bank account, you likely have signed away your only realistic means of legal recourse should you discover you have been cheated, overcharged, discriminated against, defrauded, or even endangered

As a nursing home medical malpractice attorney, I’ve been well aware of the growing numbers of nursing homes that insert binding arbitration language into residents’ contracts.

In a court of law, the facts would have been presented to an impartial jury, with equal access to documents and other evidence, the opportunity to cross examine witnesses, and the right to appeal a decision. Arbitration clauses strip you of those rights! These clauses, if they are upheld by the Court, mean that if you file a civil lawsuit, it will not be heard by an impartial jury. In the alternative, liability and your loved one’s injuries are assessed by an arbitrator that, incredibly, is often selected by the wrongdoer.

If you or a loved one is injured by a nursing home, a jury should determine whether or not your loved one’s pressure sore or fall was caused by negligence, not an arbitrator selected by the corporation.

My advice is simple: read before you sign. As you and your loved one review the admission documents, be aware of any mention of “arbitration” or other language that indicates that you agree to not pursue a lawsuit in the Court of your choosing. If you find an arbitration clause, raise the issue, and request that the clause is stricken.

If you have any questions about nursing home care or elder abuse, please feel free to contact me in the office; 410-769-5400. I am always happy to assist with these difficult issues.

Call or email me with your questions:
Jason Penn

Nursing Homes: Doing your homework can help avoid injury

Wednesday, March 27, 2019

As we age, so do our family and loved ones. Many of us are challenged by difficult decisions surrounding the future care and living arrangements for our parents and grandparents. A nursing home is a place for people who can’t be cared for at home and need 24- hour nursing care. Selecting the correct nursing home (also known as a “long term care” facility can be challenging. The process can often feel like car shopping— but the consequences of an uninformed choice can be dire. Consider using the Center for Medicare Services’ nursing home compare function ( Nursing Home Compare has detailed information about every Medicare and Medicaid-certified nursing home in the country. This includes nursing home inspection results, staffing levels, enforcement actions that the federal government has taken against the nursing home and how well nursing home residents were treated in specific areas of care.

If you have a loved one that is in need of assistance, pay careful attention to the nursing home’s ratings in the following areas: health and safety inspections, staffing, quality of resident care and penalties. Many nursing homes are corporately owned and controlled. Examination of the corporation’s other facilities can be fruitful also.

The decision to place a loved one in a nursing home is always a challenging one. Proper research and a healthy dose of due diligence can help to ensure that your loved receives the safest, best care possible. Avoiding understaffed facilities can avoid the heartache caused by pressure ulcers, preventable falls and other injuries.

If you have any questions about nursing home care or elder abuse, please feel free to contact me in the office at 410-769-5400. I am always happy to assist with these difficult issues.

Call or email me with your questions:
Jason Penn


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