If a resident of a Maryland nursing home has signed an arbitration agreement, they will be prevented from filing a case against the nursing home in court and must instead pursue their claim through the arbitration process. Thus, one of the earliest and most important considerations in a Maryland nursing home abuse or neglect case is whether there is a valid and enforceable arbitration agreement.arbitration

Most nursing homes present residents with an arbitration agreement. Often, these agreements are buried deep in dense paragraphs, and they may not be fully understood by residents. Importantly, the fact that an arbitration agreement exists is not necessarily determinative of whether a resident will be forced to arbitrate their claim; courts will review arbitration clauses as well as the manner in which they were entered into before determining whether the agreement can be enforced.

One issue that frequently comes up in nursing home negligence and abuse cases in which an arbitration clause is present is whether the party that signed the contract had authority to do so. In a recent case decided by a federal appellate court, the court held that verbal consent given by a resident – rather than the typical document granting power of attorney – was acceptable to form a binding contract.

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Abuse and neglect are serious problems in Maryland nursing homes, and in nursing homes across the country. Earlier this month, prosecutors who initially filed criminal charges against two nurses based on the allegedly negligent care they provided to residents asked the judge to dismiss the case. According to a local news report, despite the nurses’ claims that they had been taking care of a resident, video evidence showed that they did not step foot in her room for 17 hours. The video also showed that the nurses repeatedly left the elderly woman naked in her bed with the door wide open.hospital

Evidently, after the family discovered the nursing home neglect, they reported it to the authorities, and charges were initially filed. However, prosecutors recently asked the judge to dismiss the case in favor of allowing the state board of nursing to handle any disciplinary sanctions. The board would have the power to revoke the nurses’ licenses and place them on the registry of known abusers.

Although the prosecutors did not come right out and say it, what seems to be motivating their decision is the fact that in Iowa, where the abuse occurred, there is no statute allowing nursing home residents to install cameras to monitor staff. Thus, the prosecutors may be fearful that if they brought the case, the video would be inadmissible at trial, and this may create a bad precedent moving forward.

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arbitrationThe determination of whether a nursing home abuse lawsuit is fought in court or through binding arbitration is often the very first fight in a long battle that many Maryland nursing home residents and their families face when trying to hold an abusive or neglectful nursing home accountable for their actions. Historically, nursing homes fare better when their claims are heard through arbitration. Thus, Maryland nursing homes do everything they can to get cases against them in front of an arbitrator.

Over the years, more and more nursing homes began to include arbitration agreements in their pre-admission paperwork. Often, these clauses are written in small print and included in the middle of large blocks of text. The idea being that the signing party will not take the time to thoroughly read through the entire document.

For a long time, courts were upholding these agreements based on the fact that they were signed. However, over the recent years, courts have been willing to intervene when arbitration agreements are either substantively unfair or were presented to the signing party in an unfair manner. However, arbitration contracts often contain a number of terms. And in some cases, a court will only take issue with a few of the terms in the overall agreement. In these cases, there is significant litigation over whether the whole agreement is invalid or whether the offending clause can be “severed” from the rest of the agreement. A recent case discussed this very issue.

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Recently, a state appellate court issued a written opinion in a personal injury case that illustrates a key issue that arises in many Maryland nursing home negligence cases. The case presented the court with the opportunity to discuss the validity of an arbitration clause contained in the nursing home’s pre-admission paperwork. Ultimately, the court concluded that the clause should be upheld and dismissed the plaintiff’s case, holding that the plaintiff was required to submit the case through arbitration.

Reviewing the ContractThe Facts of the Case

The plaintiff arranged for himself to stay at the defendant nursing home. The plaintiff was a resident of Nebraska, and the nursing home was a North Dakota corporation with its principal place of business in South Dakota.

Prior to his admission, the nursing home presented the plaintiff with a pre-admission contract. Contained in the contract was an arbitration clause. The clause contained a check-box next to the statement that the parties agree that “any legal controversy, dispute, disagreement or claim arising between the Parties” would be resolved through arbitration. The plaintiff checked the box marked “yes, I do.”

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A state appellate court recently ruled on a case in which a nursing home’s arbitration agreement failed to strictly comply with the state’s requirements concerning arbitration agreements. In that case, when the patient had moved into the nursing home, she received an admissions packet with forms that included an arbitration agreement. The state’s Health Care Availability Act required that arbitration agreements contain a four-paragraph notice in a particular font size and bold-faced type. In the arbitration agreement on the patient’s form, the language was in the correct font size, but was not printed in bold typeface.

Arbitration ClauseAfter the patient’s death, her family brought a wrongful death claim against the nursing home. The nursing home moved to compel arbitration based on the arbitration agreement. A trial court and a state appeals court found that the agreement was void because it failed to strictly comply with the Act’s requirements in that the required language was not printed in bold type.

On appeal to the state’s supreme court, however, the court found that the Act only required substantial compliance, not strict compliance. The court also concluded that the agreement in this case substantially complied with the requirements under the Act. Here, the nursing home had printed the relevant language in all capital letters, which the court found substantially satisfied the law’s requirements. The court held that the nursing home brought attention to the text in the same way that bold type would have. Therefore, the nursing home was able to force the family into arbitration to resolve the wrongful death claim against it.

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The right of unhindered access to the court system is one of the bedrock principles the founding fathers enshrined in the United States Constitution. At its essence, the concept stands for the proposition that anyone who has been harmed by another party should have equal access to a neutral forum that will hear the evidence presented and decide the case.

Signed ContractAt the same time, parties generally have a right to freely structure business arrangements through the use of binding contracts. A common example of this is an arbitration clause that may be included in the pre-admission paperwork in a Maryland nursing home facility.

What Is Arbitration?

Arbitration is an alternative to the court system, in which an arbitrator – rather than a judge – will hear the evidence and come to a conclusion. Arbitration is less formal than the traditional court system, and may have slightly different rules of evidence and procedure. Generally speaking, parties that frequently engage in litigation prefer to arbitrate claims. This is because arbitration yields a faster result, is less expensive than, and more private than the traditional court system.

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Nursing homes are not necessarily known for their focus on patient safety. To the contrary, some Maryland nursing homes have lengthy records of fines and other citations for failing to comply with state requirements or, worse yet, instances of patient abuse or neglect. One may expect that it would be an easy task to find the allegations made against a nursing home prior to making the decision to place a loved on in their care; however, this is not necessarily the case.

Using a WalkerNursing homes take every effort to conceal allegations, especially those involving substantiated claims of neglect or abuse. One way nursing homes are able to do this is through settling such claims out of court with the stipulation that the other party will not discuss the terms of the negotiations or make the allegations public. However, nursing homes are not able to legally keep these records from state and federal agencies.

According to a news report, one North Carolina company that operates several nursing homes in the state was fined more than $567,000 over the past three years after hidden cameras revealed that staff members were abusing residents. The company owns 16 nursing homes, six of which were fined. The largest of the fines was over $234,000.

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Despite the increase in attention that Maryland nursing home abuse and neglect have received over the past several years, instances of nursing home abuse continue to occur. Indeed, according to a local news report, one state’s lawmakers have begun a push for stricter reporting requirements for allegations of nursing home sexual abuse.

Nursing Home BedEvidently, lawmakers in Missouri have proposed House Bill 1635, which, if passed, would make reporting sexual abuse to law enforcement mandatory. Currently, state law only requires nursing homes to report the abuse to the state agencies involved in overseeing elder care.

The article discusses the tragic account of a 93-year-old nursing home resident, who was raped by a staff member and then died the following day. After the resident’s death, the nursing home reported the abuse to the state but not to the prosecuting authority. The family, believing the nursing home reported the incident to the police, did not report the abuse either.

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Earlier this month, a state appellate court issued a written opinion in a wrongful death case brought by a woman whose mother died a short time after being released from the defendant nursing home. The issue was whether the plaintiff, who was named as an alternate attorney-in-fact in her mother’s power of attorney document, had the authority to sign a binding arbitration contract on behalf of her mother. The court concluded that she did and thus held that the nursing home was entitled to arbitration.

Pre-admission ContractThe case presents an interesting and important issue for those seeking to hold a Maryland nursing home accountable for abuse or neglect. Matters involving the validity of arbitration clauses often arise in Maryland nursing home abuse lawsuits, and this case is instructive as to how courts may view various arguments.

The Facts of the Case

The plaintiff’s mother (Mother) executed a durable power of attorney (DPOA) document designating her son (Son) as the person who could make decisions on her behalf if she became incapacitated. The DPOA listed Mother’s daughter (the plaintiff) as an alternate.

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Earlier last year, the current administration rolled back certain regulations that the Obama administration put into place regarding the issuance of Civil Money Penalties (CMPs) to nursing homes that were found to have provided inadequate care to residents. Essentially, the regulations allowed for the federal government to fine nursing homes that were not in compliance, including Maryland nursing homes.

Signed LetterThose in favor of the rollbacks claimed that the additional regulations took caregivers’ attention away from residents, requiring that they focus on meeting the regulatory framework set forth by the lawmakers. However, in reality, it seems as though the rollback of the previous regulations has merely allowed for nursing homes to act with impunity as it relates to the level of care they provide to residents.

According to a recent news article, 17 state attorneys general – including those in Washington, D.C. and Virginia – authored a letter to the Trump administration. The letter discusses the importance of senior care, noting that by 2060, the number of people dependent on skilled nursing facilities is expected to double. This means that one in three people will find themselves in a nursing home at some point in their life. Given the fact that about 35% of all nursing homes were cited for a violation of the quality of care being provided to residents, these figures are alarming to say the least.

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