Recently, the North Carolina Court of Appeal considered a case in which the plaintiff, a resident at an independent living facility, sued the facility alleging that one of its employees acted improperly and exposed himself to her while in her private room. The plaintiff had been moved to an advanced care section of the facility after developing dementia. According to the defendant’s employee involved in the incident, the plaintiff had become confused after lunch and was unable to find her room. The employee escorted the plaintiff back to her room. He closed the bottom half of the double dutch door behind them and left the top open.

After he left the room, the plaintiff informed her personal aide that the employee had exposed himself to her and forced her to touch his genitals. Several authorities within the facility were notified of the incident, including the employee, who was suspended pending investigation of the sexual battery charges.

The facility and the employee moved for summary judgment. The court denied the employee’s motion for summary judgment, but granted the facility’s motion. The trial proceeded with the plaintiff’s claims against the employee. The jury eventually entered a verdict unanimously determining that the employee did not commit a sexual battery against the plaintiff.

The plaintiff appealed the outcome on the basis that the trial court should not have granted summary judgment for the facility. She alleged, among other things, that there was enough evidence to create a genuine issue of material fact regarding whether the defendant negligently retained the employee and ratified his conduct. It also alleged that the lower court erred by excluding a prior allegation of assault against the employee by another facility resident.

In reviewing these grounds for appeal, the reviewing court concluded that the lower court did not commit a reversible error. Regarding the exclusion of evidence regarding the prior assault allegation, the appellate court found that the evidence’s potential to unfairly prejudice the jury outweighed any probative value that it had to offer in the litigation. Also, evidentiary Rule 404(b) explicitly prohibits evidence of other crimes, wrongs, or acts for the purpose of showing that the defendant acted in conformity with the prior conduct in the present situation.

If you or someone you love was injured or assaulted in a nursing home or other care facility, the dedicated Charlotte nursing home abuse lawyers of Maurer Law are prepared to help you seek the justice that you deserve. We offer a free consultation so that you can learn more about our legal team and how we can help you with all aspects of your claim. Call our office today at 704-243-9292 or contact us online to get started.

Recently, the North Carolina Court of Appeal was asked to consider an appeal involving a man who fell and died as a result of his injuries while admitted as a patient at a nursing home facility. The administrator of the decedent’s estate brought a claim against the facility alleging that the facility breached its common law fiduciary duty and engaged in professional negligence. The defendants denied the allegations, moved to dismiss the claim, and asserted contributory negligence as an affirmative defense. The plaintiff later moved to amend his complaint to add new information.

The trial court denied the motion to amend, noting that the plaintiff had failed to comply with Rule 9(j) in the original complaint and the proposed amended complaint. Rule 9(j) requires a court to dismiss a complaint alleging malpractice against a healthcare provider unless the complaint provides a statement that an expert witness has reviewed the records and claims and is willing to testify that the defendant healthcare provider’s conduct fell below the standard of care.

For this reason, the court denied the motion to amend on the basis that the statute of limitations for beginning the cause of action had expired. The original pleading was deficient due to its failure to comply with Rule 9(j) and therefore did not constitute a filing that preserved the plaintiff’s claims. The defendant moved for summary judgment and the trial court granted the motion. The plaintiff then filed a notice of appeal.

Before it considered the merits of the plaintiff’s appeal, the appellate court first considered whether it had jurisdiction to hear the appeal. To appeal a matter, a party must file and serve a proper notice of appeal within a specified period of time after the entry of a judgment against that party. Appellate Rule 3(d) outlines the specific contents that the notice of appeal must include and requires the party filing the appeal to designate the judgment or order from which the appeal is taken.

Here, the plaintiff listed the denial of the motion to amend as the order to be appealed but did not designate the order granting the defendants’ motion for summary judgment. The order denying the motion for leave to amend the complaint is considered an interlocutory appeal that cannot be heard until there is a final judgment in the case. The appellate court ultimately dismissed the appeal for the plaintiff’s failure to comply with Appellate Rule 3(d) by not listing the order granting summary judgment in the notice of appeal as well.

If you believe that you have a civil claim against a nursing home facility for personal injury, medical malpractice, or abuse, the seasoned Asheville nursing home abuse and neglect lawyers of Maurer Law are standing by to assist you with assessing your options. We know just how stressful and emotional this situation can be for the victim and his or her family. We offer a free and confidential consultation to discuss your situation. Call our office today at 704-243-9292 or contact us online to get started.

Recently, the North Carolina Court of Appeals considered a case in which an elderly resident at a nursing home facility with dementia alleged that one of the workers had exposed himself to her and engaged in inappropriate touching. The complaint alleged that a certified nursing assistant had assisted the resident back to her room after lunch and engaged in the sexual assault at that time. According to the nursing assistant, however, the aide had escorted the resident back to her room and spent one minute sitting next to the resident for the purpose of calming her down. The resident reported the incident to her personal aide, who arrived at the room soon after the nursing assistant left.

The facility submitted the required 24-hour initial report to the North Carolina Department of Health and Human Services, Health Care Personal Registry and completed an investigation. It concluded that it was unable to substantiate the allegations due to the absence of any witnesses and the resident’s clinical diagnosis of dementia. A physician also determined that the resident lacked mental capacity. The nursing assistant was allowed to return to work and was assigned to a different hall. Other government agencies also investigated the claim and found it to be unsubstantiated.

The resident’s daughter filed a civil claim alleging claims for assault and battery against the nursing assistant. It also alleged claims against the facility for vicarious liability as well as negligent supervision and retention of the nursing assistant. The nursing assistant filed a motion to dismiss and the facility filed a motion for summary judgment. The plaintiff also moved for summary judgment. The court granted the facility’s motion but denied the nursing assistant’s and plaintiff’s motions. The matter proceeded to trial where a jury concluded unanimously that the nursing assistant did not commit battery. The plaintiff appealed.

On review, the plaintiff alleged that the court erred in granting the facility’s motion, erred in allowing expert opinion testimony about the mental capacity of the resident, and erred by excluding evidence about a prior assault allegation that was offered for the purpose of demonstrating that the nursing assistant had a propensity to commit these acts. The appellate court rejected all of these arguments and upheld the lower court’s decisions. The facility’s motion was properly granted because the facts did not show that the facility ratified any sexual misconduct as the plaintiff’s complaint alleged. Rather, the facility engaged in a prompt investigation and suspended the nursing assistant. It also concluded that the lower court made appropriate decisions regarding allowing the evidence about the resident’s mental state while excluding evidence about prior allegations because the probative value was outweighed by the potential prejudice to the nursing aide.

If you were injured as a nursing home resident or if your family member is a nursing home resident who has experienced abuse, we are standing by to assist you. We understand that no amount of compensation can truly make your family whole again after this event, but it can help you cope with the stress and expenses involved. To schedule a free consultation, contact our Asheville nursing home abuse lawyers today at 704-243-9292 or contact us online to get started.

In a recently filed case, the administrator of a decedent’s estate brought a claim alleging that the operators of a nursing home facility were negligent in providing the decedent care and that he died as a result. The plaintiff in the case, the decedent’s son in law, was named as the decedent’s power of attorney. The complaint included claims for negligence, medical negligence, and corporate negligence among other things. In response to the complaint, the defendant filed a motion to compel arbitration that it later withdrew. The defendants eventually filed another motion to stay the legal proceeding and compel arbitration. The court eventually denied the motion finding that the defendants acted inconsistently in regard to the arbitration agreement and that to allow it to pursue arbitration at this stage would cause undue prejudice to the plaintiff. The defendant promptly appealed the lower court’s decision.

On appeal, the court first noted that public policy favors arbitration because it is an efficient use of judicial resources and allows for the quick resolution of legal disputes. It then reviewed the record and noted that the defendants acted inconsistently regarding the supposed arbitration agreement. In addition to withdrawing the first motion to compel arbitration, defendants’ attorney sent an email to plaintiff’s counsel indicating that the defendants did not intend to move forward with the motion. Although it later reasserted the motion, the plaintiff had incurred expenses in the meantime in the form of litigation fees and related costs. More than 15 months had passed since the defendants first withdrew the motion and asserted it again. The plaintiff also took actions like hiring seven expert witnesses, traveling to attend hearings and other case-related matters, and preparing for deposition, and taking depositions. As a result, the appellate court upheld the lower court’s decision to deny the defendant’s motion to compel arbitration.

Arbitration agreements can be incredibly confusing especially if you don’t remember signing one or if the person who signed it was taking medications that impacted mental capacity or had some other condition at the time it was signed. If you or someone you loved was injured due to negligent or reckless care at a nursing home facility, the seasoned Charlotte nursing home abuse lawyers at Maurer Law are prepared to help you pursue the compensation you may deserve. Our team will ensure that you receive the compassionate and supportive legal advice that you deserve during this time and that your rights are protected throughout the proceedings. To schedule a free consultation call us at 704-243-9292 or contact us online to get started.

In a recent case, the North Carolina Court of Appeal considered a wrongful death claim against a nursing home facility. The administrator of the decedent’s estate brought a John Doe claim seeking subpoena power to investigate a fall that allegedly led to the decedent’s death, alleging that negligence was the cause of the fall. The facility responded by filing a motion to dismiss the complaint and denying the allegations. It asserted that the decedent was contributorily negligent and that it had already satisfied the defendant’s discovery requests seeking the decedent’s medical records.

The plaintiff filed motions to amend and argued that the defendant had not provided enough discovery to assist the plaintiff with prosecution of the case and moved to compel production of documents that it alleged the defendant was withholding. The plaintiff also alleged that he retained an expert who concluded that the nursing home engaged in malpractice and that he wished to add a cause for “nursing home malpractice” to the complaint. The trial court denied the motion to amend the complaint noting that both requests the plaintiff made to amend failed to include a certification of compliance in accordance with Rule 9(j). It also noted that the statute of limitations to add a new cause for medical malpractice had expired.

The defendant then moved for summary judgment, which the lower court granted. The plaintiff appealed but labeled the appeal as being from the court’s order denying his motion to amend the complaint.  The order denying the motion for leave to amend was an interlocutory order, meaning one that did not result in a final judgment. In order to appeal an interlocutory order, the appellee must designate the interlocutory order and the final judgment in the case. The appellee in this case did not note the final order.

The appellate court noted its general practice of not immediately rejecting an improperly designated appeal if it can be fairly inferred from the papers that the appellee meant to appeal from another specific judgment. Because the appellee did not note the final judgment in his appeal, the appellate court concluded it did not have jurisdiction to review the case. Therefore, it dismissed the appeal without reviewing it.

If you or someone you love was injured in a nursing home, you may be entitled to compensation from the facility and/or people who hurt you or your loved one. The attorneys at Maurer Law are seasoned Charlotte personal injury lawyers who believe that you deserve compassionate and responsive legal counsel during this difficult time. To set up your free consultation call us at 704-243-9292 or contact us online to get started.

In a recent case, the plaintiff was a woman who fell when she was 81-years-old resulting in injuries that required surgery. She was then admitted to a rehab facility before being transferred to a long-term patient care facility. The plaintiff was her daughter who was required to sign a form before her mother could be admitted entitled “Business Contract” and which described her as “Responsible Party.” Her mother was listed as the “Resident.” According to the terms of the agreement, the Responsible Party was financially responsible for the Resident’s time at the center. It also contained a seven-part arbitration clause.

The plaintiff’s mother suffered several more falls including a fall that resulted in a broken hip necessitating surgery. She eventually died at the center. The plaintiff filed a personal injury complaint against the center listing negligence, medical malpractice, wrongful death, and a claim under North Carolina’s Statutory and Regulatory Rights Violations statute. The defendant responded with a motion to compel arbitration on the basis that the plaintiff agreed to arbitration when she signed the agreement as the responsible party. The trial court dismissed the motion to compel arbitration and granted dismissal of the plaintiff’s claim under the statute and claim for medical malpractice. The defendants appealed.

On review, the appellate court upheld the dismissal of the motion to compel arbitration. It concluded that, based on the terms of the agreement, the act of signing the agreement on behalf of the resident and agreeing to act as the responsible party did not entitle the responsible party to waive a resident’s right to trial. Under North Carolina law, the party seeking to enforce arbitration must show that the parties mutually agreed to arbitrate their disputes. Because the mother had not appointed her daughter as her attorney-in-fact, the daughter did not have legal authority to bind her mother to arbitration. The appellate court rejected the idea that the daughter’s willingness to sign the agreement and take financial responsibility did not assume that she also had authority to enter into an arbitration agreement. Matters requiring legal authority can only be executed by the individual or his or her power of attorney.

If you or someone you love is in a nursing home and suffering from abuse or neglect, you deserve an experienced and understanding attorney to help you fight for your rights. At Maurer Law, our team of Charlotte nursing home abuse lawyers offers a free consultation to help you learn about North Carolina’s nursing home abuse laws and whether you may be entitled to compensation. Call us today at 704-243-9292 or contact us online to get started.

In a recent case, the North Carolina Court of Appeals considered a claim in which the plaintiff appealed from a dismissal of her complaint alleging that a nursing home facility was responsible for injuries that her mother received while her mother was in the facility’s care. The lower court dismissed her action on the basis that she did not name the right defendant in the lawsuit.

According to the complaint, the facility where the mother was admitted for respite care attempted to move her using a lift. The plaintiff alleged that the facility was negligent in operating the lift, causing her mother to suffer injuries. In her complaint, however, the plaintiff named another company as the defendant. Instead of answering the complaint, the named defendant filed a motion to dismiss and provided information seeking judicial notice of public records showing that it did not own or operate the facility. The documents were the business organization papers for the company that did own the facility.

The appellate court started by reviewing the standard for motions to dismiss, which requires a court to dismiss a complaint where there is a fact that defeats the plaintiff’s claim. The documents that the named defendant pointed to established that the facility was owned by another company, thereby defeating the plaintiff’s action against the named defendant. A party cannot be held responsible for a tortious act that occurred at a business where it does not have custody, control, or involvement.

In response, the plaintiff argued that there was some possibility that the named defendant acted negligently, but the court rejected this theory on the basis that its job is not to grant relief on “any theory” that may support recovery for a party. The court cannot speculate as to how a party may be involved in an action, which is why ensuring that the complaint is well-written and includes the key facts is so important.

If you or a loved one suffered injuries in a nursing home, such as sexual abuse, financial abuse, emotional abuse, or physical abuse, you may be entitled to compensation. Going up against large companies can be daunting especially if it involves a complicated web of different companies and entities. Maurer Law will assist you with every step of the process, including identifying the appropriate parties to name in your action. Our team of compassionate legal professionals offers a free consultation to help you learn more about your potential claim and how we may be able to help you. Call us at 704-243-9292 or contact us online to get started.

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The appellate court explained that the plaintiff’s forecast of evidence tended to show that her mother fell in 2007, and due to the fall, she needed surgery. She was admitted to the defendant’s rehab center, where she stayed as a long-term patient under the rehab center’s case.

The defendants required the plaintiff’s mother to sign a form as a precondition to her admission. The contract designated the mother as the “resident” and the plaintiff as the responsible party. The plaintiff signed the admission paperwork and accepted financial responsibility for the mother’s time at the rehab facility. A Special Power of Attorney form was referenced, noting that the resident had appointed the plaintiff as the responsible party. Additionally, a seven-part arbitration clause was signed.

During her stay, the mother’s condition worsened, and she stopped being able to walk without help. In 2011, she left the center but then came back a month later. The plaintiff signed a readmission agreement, which stated the parties’ agreement to stay bound under the other agreement’s terms, including the arbitration provisions.

While at the center, the mother fell and suffered a hip fracture. She was 87 and had to have surgery. While a resident at the center, she fell several additional times, and these caused her physical pain and suffering. In the following year, she died. The plaintiff sued the defendants, claiming negligence, statutory and regulatory rights violations, medical malpractice, and wrongful death.

The defendants moved to dismiss or compel arbitration. At the hearing, the defendants argued that the plaintiff’s claims were subject to arbitration, based on the agreement she’d executed when she admitted her mother into the center. It also argued that it had offered to give services to the mother, and the plaintiff was the responsible party who had accepted the center’s terms. They included copies of the agreements in what they submitted to the court.

The plaintiff claimed the defendants had the burden to show she was the duly authorized power of attorney for the mother at the time. She claimed there was no evidence she signed a power of attorney for her mother.

The defendants claimed that the arbitration agreement included a power of attorney or other legal authority and that this included the plaintiff. The defendants also argued that the trial court should err toward enforcing arbitration. The trial court took the matter under advisement and entered an order in 2016. The court granted the defendants’ motion to dismiss certain claims but not others. It also dismissed the motion to compel arbitration.

The defendants appealed. The appellate court explained that the record included all of the documents and that the terms of the agreements were unambiguous. The court decided that the act of signing an admission on behalf of a nursing home resident didn’t entitle the person who signed the agreement to waive a resident’s right to trial, even though the public policy favored arbitration. Parties seeking arbitration need to show that the parties both agreed they would arbitrate. The plain language of the arbitration agreement stated that it applies if the decedent was unable to understand her rights and responsibilities under the agreement or if she couldn’t communicate. There was no evidence to show the decedent was unable to communicate. The decedent had never manifested any type of consent to show that her daughter was acting as her agent. The plaintiff had only agreed to be financially responsible. The lower court’s ruling was affirmed.

If you suffered injuries due to the wrongful conduct or negligence of a nursing home, the experienced North Carolina attorneys at Maurer Law may be able to help you recover compensation. Contact us at 704-243-9292 or via our online form.

She didn’t attach a Rule 9(j) certification to her nursing home negligence complaint. The defendants asked the trial court to dismiss the plaintiff’s lawsuit. The court dismissed the plaintiff’s claims for failing to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure, which applies to medical malpractice lawsuits, determining that all of the claims constituted medical malpractice, and therefore, the doctrine of res ipsa loquitur did not apply.

On appeal, the plaintiff argued that Rule 9(j) didn’t apply because she wasn’t suing for medical malpractice. The appellate court found that some of the claims were for medical malpractice, while others weren’t, and they arose out of the defendants’ actions after the mother’s death. The 11 claims in the complaint were labeled as wrongful death, medical negligence, negligence, loss of sepulcher, contractual breach, fiduciary duty breach, bad faith, elder abuse, emotional distress of the decedent’s survivors, pain and suffering, and conspiracy. The appellate court determined that some of these claims had to do with the conduct of the defendants before the mother died, and others were related to actions taken after the mother’s death.

The claims arising from before the mother’s death had to do with the defendants’ failure to give the mother adequate medical care after the fall and provision of treatment without informed consent. The appellate court found that these claims fell within Rule 9(j). Rule 9(j) requires medical malpractice complaints to be dismissed unless they specifically assert someone reasonably expected to serve as an expert witness has reviewed the medical care and all of the medical records related to the negligence that are available to the plaintiff after a reasonable inquiry. That expert must be willing to testify that the medical care provided to a claimant didn’t meet the relevant standard of care under N.C. Gen.Stat. § 1A-1, Rule 9(j). The purpose of this requirement is to weed out frivolous malpractice claims, and if a plaintiff doesn’t comply with the requirement, the complaint must be dismissed.

The appellate court found that each defendant met the definition of health care provider under the statute. The plaintiff hadn’t set forth facts that suggested the doctrine of res ipsa loquitur (which means “the thing speaks for itself”) applied.

However, the plaintiff also claimed damages based on how the defendants handled her mother’s dead body and one of the defendants’ breach of contract in failing to provide specific bereavement services as required by contract. The appellate court determined that these two post-death claims didn’t have to do with providing medical care. It determined that the trial court had made a mistake in dismissing those two claims, since no Rule 9(j) certification was required for them.

If you suffered harm due to nursing home negligence, the experienced attorneys at Maurer Law may be able to help you recover compensation. Contact us at 704-243-9292 or via our online form.