What constitutes abuse or neglect under Maryland Law?
What are the legal remedies if your elderly family member was abused or neglected in a nursing home facility?
State Remedies
What remedies can these agencies provide?
Remedies Under Federal Law
Other Sites of Interest

Introduction

There are over one million elderly and disabled adults living in nursing homes in this country and that figure is quickly approaching the two million mark. As a result of this rapid growth, abuse and neglect has gradually become one of the most common problems plaguing nursing homes today. In fact, numerous incidents of starvation, dehydration, improper administration of medication, and other problems associated with neglect and abuse are reported each year. This web-site is specifically designed to provide you with a general overview of the relevant Maryland and Federal laws addressing abuse and neglect in nursing homes and to alert you of the various legal remedies available in such situations.

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What constitutes abuse or neglect under Maryland Law?

Abuse is defined by Maryland law as "the non-therapeutic infliction of physical pain or injury, or any persistent course of conduct intended to produce or resulting in mental or emotional distress." Md. Ann. Code Health Gen. §19-347 (1998). Abuse, however, does not include the performance of accepted medical treatment to an individual.

For criminal purposes, abuse is defined as "the sustaining of any physical pain or injury by a vulnerable adult as a result of cruel or inhumane treatment or as a result of a malicious act by a caregiver . . . " Md. Code Art. 27, Crimes and Punishments, §35D (1957). Neglect means the "intentional failure to provide necessary assistance and resources for the physical needs of the vulnerable adult, including food, clothing, toileting, essential medical treatment, shelter, or supervision." Md. Code Art 27., Crimes and Punishments, §35D (1957).

What are the legal remedies if your elderly family member was abused or neglected in a nursing home facility?

There are various remedies under State and Federal law in an abuse or neglect situation. Some routes may produce more favorable results than others and the available remedies will often depend on the gravity of the neglect or abuse.

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State Remedies:

Making a Report: If you believe that your family member, who is a resident of a nursing home, is being abused or neglected, you may make a report to the police, the Secretary, or the Department of Aging (http://www.inform.umd.edu/UMS+Stat/MD_Resources/OOA/). The report may be oral or written and, if possible, you should include as much information to support your claim as this will assist the agency in the investigation.

Upon receiving the information, the agency to which you report your neglect or abuse claim will notify the nursing home of the complaint. Because the nursing home in which your family member resides will be alerted of the ongoing investigation, you may feel hesitant to make a complaint while your relative is still in the nursing home. This is indeed a valid concern given that it is very unlikely for you to be at the nursing home at all hours to observe any possible retaliatory measures taken by nursing home employees. Some individuals who desire to report neglect or abuse will therefore remove the family member from the nursing home prior to making a report. You may also file a claim if your family member dies as a result of suspected neglect or abuse by the nursing home.

Maryland law provides that the agency to which you report your claim shall thoroughly investigate each report of alleged abuse and arrange for the protection of the victim. The investigation should include the nature, extent, and cause of the abuse and the identity of the abuser.

Within ten days after the completion of the investigation, the agency shall submit its finding to either: (1) the State's Attorney for possible criminal prosecution; (2) the Secretary; (3) the local ombudsmen; (4) the nursing home administrator (unless the administrator is the alleged abuser); or (5) the Division of Licensing and Certification of the Department of Health and Mental Hygiene. See Md. Ann. Code Health Gen. §19-347 (1998).

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What remedies can these agencies provide?

Criminal Action by the State's Attorney

If the State's Attorney elects to prosecute an abuse or neglect complaint criminally, the person who causes the abuse or neglect may be found guilty of a misdemeanor and be subjected to a fine not exceeding $5,000 or imprisonment for not more than five years, or both.

Local Ombudsmen

The Maryland Long Term Care Ombudsmen Program protects and advocates for the welfare of nursing home residents and residents in other long-term care facilities. The local ombudsmen investigates concerns and works to alleviate problems and concerns. In general, the ombudsmen office is mostly used in non life threatening situations. To locate the ombudsmen in your area, call Senior Information and Assistance. (http://www.inform.umd.edu/UMS+Stat/MD_Resources/OOA/).

Division of Licensing and Certification of the Department of Health and Mental Hygiene (DHMH)

This agency supervises nursing homes and the enforcement of nursing home regulations. Specifically, this agency licenses nursing homes for the State and certifies the nursing home for participation in Medicare and Medicaid programs each year. Upon receiving a complaint, this agency can issue a citation and fine the nursing home for the violation and require that remedial measures be taken. The nursing home may appeal the finding by this agency and the individual making the complaint has the right to an informal hearing. http://dhmh.state.md.us/

State Civil Litigation

Another possible remedy is to take private legal action against the nursing home in an abuse or neglect situation. Since Maryland has not yet enacted an Elder Abuse statute to provide additional rights to elders, you may proceed under the traditional assault or wrongful death statutes. If you decide to file a private suit against the nursing home, however, it may be beneficial to consult an attorney who specializes in this area of law. Indeed, the nursing home will often have counsel who will burden an unknowledgeable attorney or pro se individual with floods of paperwork. Before consulting an attorney, or if you decide to file suit pro se, it is very helpful to document, as much as possible, all allegations of neglect. For instance, you can record in writing all of the possible instances of neglect with dates and details. If you filed a complaint with the State and it was substantiated, it is important to have a copy of that report. It is also helpful to obtain all medical records from your family member's physician or any hospital records which will support your claims.

If you decide to go pro se, it is worthwhile to visit your local courthouse and familiarize yourself with complaints and responses filed in neglect and abuse cases involving nursing homes. These documents are available to the general public in the clerk's office of the courthouse and you often can copy these papers. In addition to learning about the applicable case law governing abuse and neglect, you also may be able to anticipate the responses which will be filed by defendant nursing homes upon reviewing these documents.

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Remedies Under Federal Law

Because many nursing homes receive most of their income from Federal Medicare and Medicaid funds, certain cases may be brought in Federal court. For example, if you have evidence that a family member did not receive adequate care as defined by the Federal Regulations, 42 CFR Part 483, and that care was paid for by the federal government, then a suit may be brought under the Federal False Claims Act's quit tam provision. The qui tam law allows anyone who has direct knowledge of anyone who is taking Federal money under false pretenses to sue on behalf of the government. If the government brings suit and wins, the plaintiff can get as much as 25 percent of the money recovered. If, however, the plaintiff and his attorney can litigate the case in Federal court themselves, they can recover up to 30 percent of the money returned to the Federal government.

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DHMH News Release Regarding Nursing Home Abuse: http://dhmh.state.md.us/publ-rel/html/abuse.htm

Project CAMM: Curb Abuse in Medicare and Medicaid: http://www.ooa.state.md.us/camm/

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