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Nursing homes have long had a reputation for providing less-than-stellar care to residents. Indeed, every day there are new allegations of Maryland nursing home abuse or neglect. However, according to a recent government study, the total number of instances of nursing home abuse and neglect is actually under-reported.

CNN recently discussed a newly released report issued by the Department of Health and Human Services, concluding that one in five emergency room visits by nursing home patients is the result of abuse. The study analyzed over 37,000 emergency room admissions that were reported to the Center for Medicare and Medicaid (CMS). Also startling is the fact that “nursing homes frequently failed to report incidents of abuse to either CMS or local law enforcement, as required by federal regulators.”

The Office of the Inspector General for the Department of Health and Human Services told reporters that he fears instances of nursing home abuse are under-reported and that CMS can do a better job preventing abuse and neglect by using available data to target facilities with recurring reports of misconduct.

Over the past few months, we have frequently covered cases and news stories discussing the issue of mandatory arbitration clauses that are contained in Maryland nursing home contracts. In Maryland and around the country, arbitration clauses continue to be one of the most contentious issues in many cases that are filed against nursing homes based on either the neglect or abuse of a resident. If enforceable, an arbitration clause can prevent a nursing home resident or their loved ones from pursuing a claim against the facility in court.

In a recent case issued by a state appellate court, a nursing home arbitration agreement was held not to be applicable against a resident’s son, although the resident’s son was the person who signed the form. According to the court’s opinion, the resident was admitted to the defendant nursing home in 2015. At the time, he was suffering from sepsis and chronic renal failure. The man’s son (the plaintiff) accompanied him to the nursing home and facilitated his admission.

The day after his father was admitted into the nursing home, the plaintiff was presented with a stack of documents to sign. Among these documents was one that, by signing, the plaintiff purported to consent to arbitration if the mediation process was not successful in resolving the case. All documents were signed.

One form of Maryland nursing home abuse that has recently begun to get a significant amount of attention is resident-on-resident abuse. The physical and mental conditions of residents at the time they are admitted into a nursing home vary. Because of this, some residents are better able to care for themselves, and they may seem to need less attention or supervision. Of course, there are also many residents who are incapable of self-care and require the near-constant assistance of nursing home staff members.

It is in this environment that resident-on-resident abuse is common. In fact, some experts estimate that one in five nursing home residents are victims of resident-on-resident abuse. This figure may be an underestimate because many victims of nursing home abuse are unable to report what they have endured, or choose not to report their abuse due to embarrassment or out of fear of not being believed.

Nursing homes have a duty to provide for the safety of residents, including protecting them from a threat of harm from another resident. When resident-on-resident abuse is reported, it must be taken seriously by nursing home administration. The alleged offender should immediately be separated from other residents, and the nursing home should contact the police. However, too often, nursing home staff members attempt to handle these matters internally, perhaps because they are skeptical of the accusations or they do not want the allegations to be made public. In such instances, it is not uncommon for the offending resident to continue to engage in abusive behavior. Depending on the situation, nursing homes may be liable for a resident’s injuries, even if the facility reports the abuse promptly.

The legal and ethical implications of mandatory arbitration provisions have been the subject of much discussion over the past few years. Recently, the U.S. Supreme Court issued an opinion in an arbitration case. While the case involves an employment arbitration agreement, the case is relevant to Maryland nursing home cases insofar as it illuminates the Court’s general position on arbitration agreements. Especially interesting is Justice Ginsburg’s dissent to the Court’s opinion.

The case involved a dispute between an employee and his employer, after the employer released the employee’s personal information in response to a phishing scam. Prior to his employment, the employee signed an arbitration agreement. Nowhere in the arbitration agreement was the possibility of a class-action discussed.

After the employee filed a lawsuit against his employer, intending to form a class-action lawsuit against the employer, the employer argued that the arbitration agreement compelled bilateral arbitration, or arbitration between a single employee and the employer.

Nursing homes are supposed to provide residents with the assistance necessary to carry out their daily tasks. Many of these tasks are routine, and do not necessarily involve providing medical treatment. However, depending on the nature of a resident’s condition and limitations, nursing homes are responsible for providing basic medical care to residents. If a Maryland nursing home resident requires treatment that a nursing home is unable to offer, the home must arrange for the resident to be treated by another provider.

When a resident is injured or dies while under the care of a Maryland nursing home, the resident or their loved one can pursue a Maryland nursing home neglect case against the facility. However, depending on the specific allegations involved in the complaint, the case may be considered a “medical malpractice” case. This is important because Maryland law requires specific additional procedures to be followed in Maryland medical malpractice cases. A recent state appellate opinion illustrates how a plaintiff’s failure to comply with the exacting requirements precisely can result in their case being dismissed.

According to the court’s opinion, the plaintiff’s mother was a resident in the defendant nursing home. In January 2016, nursing home staff dropped the plaintiffs’ mother as they were transferring her from a bath chair to her bed, causing the woman to suffer a laceration on her leg. She died a few months later.

When someone is admitted into a Maryland nursing home, the nursing home will present the potential resident with pre-admission paperwork that must be completed before the home will accept the resident into its care. This paperwork will often contain an arbitration agreement by which the resident agrees to resolve any disputes that arise through binding arbitration, rather than filing a case in court.

Most nursing home residents are admitted to a Maryland nursing home because they are unable to care for themselves. Thus, the pre-admission paperwork is often filled out by loved ones who are helping their aging relative obtain the care they need. These family members may or may not have power of attorney over their loved one’s affairs. Even if a resident has executed a power of attorney in favor of a loved one, the exact wording of the document is crucial when determining whether the loved one has the ability to bind the resident to an arbitration agreement.

Recently, a court dismissed a nursing home’s request to compel a resident to resolve their case through arbitration. In that case, a man was admitted to the defendant nursing home. At the time of admission, the man was alert and aware of his surroundings. However, he was accompanied by his niece, who signed all nursing home pre-admission paperwork. Included in this paperwork was an agreement to arbitrate all claims. The resident had executed a power of attorney in favor of his niece. However, that document was only effective once the resident became mentally incompetent.

The United States Constitution guarantees all citizens equal access to our court system. However, courts have repeatedly held that the right of access to the court system, like many other important rights, can be waived. In theory, by signing an arbitration agreement a person gives up their right to file any future claim in the court system and agrees to resolve the claim through binding arbitration.

Arbitration clauses are used in many situations, including employment contracts, cell phone contracts, and, of course, nursing home contracts. However, there is a serious concern that those who are asked to sign an arbitration agreement – and, in the process, give up fundamental constitutional rights – do so unknowingly. Indeed, it is not uncommon for the victim of Maryland nursing home abuse to file a claim, only to learn for the first time that they must resolve the claim through arbitration

Despite the important rights that a person gives up when agreeing to arbitration, too often, arbitration clauses consist of a few paragraphs in a much longer contract. These contracts are usually written in small print and, at first glance, would seem to be unimportant. Thus, when consumers, nursing home residents, or employees are presented with these lengthy documents, they frequently overlook the arbitration clause, or at least fail to fully comprehend the importance of the document that they have just been asked to sign.

When someone is admitted as a resident in a Maryland nursing home, they are likely presented with pre-admission paperwork containing an agreement to arbitrate. These agreements, if enforceable, require that any Maryland nursing home abuse or neglect claims arising from a resident’s relationship with the facility are resolved through arbitration rather than through the court system.

In previous posts, we have discussed the pros and cons of resolving claims through arbitration from the resident’s perspective. It is important to note that, by agreeing to arbitration, Maryland nursing home residents give up many of their rights. Most notable of the rights that are waived is that of access to the court system and to appeal an adverse judgment.

For the most part, nursing home arbitration decisions are final. However, if the arbitration was not properly conducted, one of the parties involved in the arbitration may have been deprived of a statutory or constitutional right. In these situations, an arbitration decision can be reviewed by a court. However, establishing that a decision is entitled to review can be difficult. Recently, a state appellate court refused to reconsider an arbitration award that was issued against a nursing home.

While most Maryland nursing homes and skilled care facilities are for-profit businesses, some Maryland nursing homes operate as non-profit organizations. The question occasionally arises whether a nursing home’s status as a non-profit organization can affect a resident’s ability to recover for any injuries that were due to the neglect of the facility’s staff members. The answer, as is often the case in legal questions, is “it depends.”

Maryland law offers immunity to both volunteers as well as to charitable organizations. Depending on the specific circumstances of a case, either or both of these immunities may apply. Maryland law defines a charitable organization as one that is tax-exempt under § 501(c)(3) of the Internal Revenue Code.

Under the Maryland Volunteer Service Act, those who volunteer at charitable organizations cannot be held liable for amounts in excess of any personal insurance they carry for any injuries caused by the acts or omissions of “an officer, director, employee, trustee, or another volunteer.” When a volunteer’s actions result in injury to another, the volunteer will be afforded the same protection unless their actions constitute “gross negligence, reckless, willful, or wanton misconduct, or intentionally tortious conduct.” Importantly, the Volunteer Service Act does not grant complete immunity to qualifying volunteers and allows for a Maryland nursing home resident to pursue a claim for compensation. However, the resident will only be able to recover up to the limits of the individual’s insurance coverage.

The validity and enforceability of arbitration agreements have recently become very important issues in Maryland nursing home abuse and neglect cases. Typically, these agreements are contained in the pre-admission paperwork that a resident or their loved one is asked to sign before the resident is admitted. Needless to say, this is a very stressful and emotional time, and prospective residents and their family members may not always have a full appreciation for the rights they give up by signing an arbitration agreement.

As a general rule, courts will enforce an arbitration agreement as long as it is valid and executed correctly. One crucial question that courts will ask when determining the validity of an arbitration agreement is whether both parties knew what they agreed to when they entered into the agreement. A recent article discusses a case in which an arbitration agreement did not bind a nursing home resident because the contract was signed by her son, who did not speak English.

Evidently, back in 2017, an 86-year-old woman was admitted to the defendant nursing home after a left-knee replacement surgery. Because of her age and frailty, the woman was identified as a high-risk patient. During her stay at the defendant nursing home, she claimed that a nurse at the facility “recklessly pushed” her wheelchair into a bathroom door, causing her to break her patella.

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