Maryland nursing home plaintiffs often have to wrestle with the impact of nursing home arbitration agreements. Massachusetts’s Supreme Court will soon decide whether wrongful death plaintiffs in nursing home lawsuits can be forced into arbitration. Many nursing home residents sign arbitration agreements when admitted into a nursing home, which can later limit their ability to bring claims against the nursing home. A recent lawsuit challenged the enforceability of such agreements against a resident’s heirs in bringing wrongful death claims in court.

In this case, a federal appeals court considered whether arbitration agreements can bar a resident’s heirs from later bringing wrongful death claims in the state. The resident had been admitted to a nursing home, and when she was admitted, her daughter signed an arbitration agreement for her as her representative. The agreement stated that any dispute covered by the agreement would be resolved “exclusively by an [alternative dispute resolution] process that shall include mediation and, where mediation is not successful, arbitration.” The agreement also stated that it applied to the resident and “all persons whose claim is or may be derived” through the resident, including the resident’s heirs, representative, executor, and others.

After her mother died while in the care of the defendant nursing home, the daughter later brought a wrongful death suit against the facility, claiming that it was responsible for her mother’s death. The nursing home argued that the claim had to be resolved in arbitration, pursuant to the arbitration agreement the daughter signed on her mother’s behalf. It further argued that the daughter’s claim was derivative of the resident’s claim, and that her claim was bound by the agreement. The daughter argued that she was not bound by the agreement because her claim against the nursing home as a beneficiary in a wrongful death claim is independent of her mother’s claim.

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Historically, Maryland nursing homes have been able to avoid costly lawsuits brought by residents or their family members by including arbitration clauses in the pre-admission paperwork that is presented to residents prior to their admission. By signing an arbitration clause, a nursing home resident gives up their right to a trial by jury, and agrees to resolve any dispute that may arise between the parties through binding arbitration.

While in theory arbitration may not sound like a bad thing for nursing home residents, by agreeing to arbitration, nursing home residents give up important rights and get little to nothing in return. That being the case, it is not surprising that long-term historical data shows that nursing homes fare better in arbitration than they do in traditional courts.

For the past few years, nursing home arbitration contracts have been the subject of much debate. During the Obama Administration, nursing home arbitration contracts were disfavored, and those nursing homes that included these clauses in their pre-admission paperwork were ineligible for federal funding. However, more recently that policy has been stepped back, and nursing homes have seized the opportunity, and have started to rely on arbitration clauses once again.

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While many of the Maryland nursing home cases we handle involve egregious instances of physical and sexual abuse committed against residents, the harms that befall neglected nursing home residents are often just as serious. Maryland nursing home residents are placed in skilled nursing facilities because they are unable to take care of their own basic needs. Thus, residents rely on nursing home staff for assistance with eating, bathing, using the bathroom, taking medication, and other daily tasks. When nursing home staff members fail to provide the individualized care and attention that a resident needs and deserves, a resident’s health will naturally suffer as a result.

By accepting a resident into its care, a Maryland nursing home assumes both a contractual and legal duty to provide a certain level of care to the resident. If the resident’s condition worsens or is otherwise injured due to a facility’s failure to provide necessary services, the resident or a family member may be able to pursue a claim for compensation against the facility.

Family Considers Lawsuit Following Resident’s Death

Last month, an 86-year-old veteran died while he was in the care of a nursing home. According to a local news report, nurses discovered an infection in the resident’s groin on February 16, 2019. At the time, the nurse taking the report indicated that she could smell that the man had an infection upon entering his room.

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When a Maryland nursing home employee is subject to neglect or abuse, the local prosecuting authority has the discretion whether to pursue criminal charges against the accused. Typically, if criminal charges are filed, the victim of the abuse or neglect will wait until the resolution of the criminal case to pursue a civil claim for damages. If the accused is found guilty at a criminal trial, this may help the victim obtain a judgment against their abuser.

While a criminal conviction may make it easier for the victim of nursing home abuse or neglect to recover for their injuries in a personal injury lawsuit, it is important that Maryland nursing home residents and their families know that there is no requirement that the accused is found guilty – or even charged – with a criminal offense. This is due to the different standards of proof in civil and criminal cases.

To be found guilty of a criminal offense, a jury must establish that the accused is guilty “beyond a reasonable doubt.” This is a very high standard. However, in a civil claim against a Maryland nursing home, the plaintiff need only prove that the defendant was liable by a “preponderance of the evidence.” Most jurists understand this standard to mean that it was “more likely than not” that the defendant is liable under the plaintiff’s theory.

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Reports of neglect and abuse are common in nursing homes and skilled care facilities. However, the exact number of Maryland nursing home residents who are neglected or forced to endure physical or sexual abuse is difficult to determine. One reason for this is because many nursing home residents have a very difficult time successfully reporting abuse or neglect.

There are several reasons why a nursing home resident may have a difficult time successfully reporting abuse or neglect. For example, some residents may be ashamed of what they have experienced or fear that their reports or abuse or neglect will be met with skepticism from loved ones. However, the more common reason for a resident’s failure to report nursing home abuse or neglect is their inability to do so.

Those who are inclined to prey upon the aged or disabled often select the most vulnerable individuals of this population as victims. Predators do this knowing that their victims will likely be unable to report what has been done to them and, even if it is reported, the reports may not be taken seriously.

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Nursing homes take on an enormous responsibility when they accept a resident into their care. Of course, a Maryland nursing home is required to provide residents with a safe living environment, keeping residents free from the potential abuse of staff members and other residents. However, there is also an affirmative duty taken on by nursing homes to provide a certain level of care. When a nursing home fails to live up to this standard, the facility may be liable through a Maryland nursing home negligence lawsuit.

There are many different types of nursing home negligence. Nursing home residents are often unable to provide for their own basic needs, and rely on others to help them with routine daily tasks such as bathing, eating, and taking medication. In some cases, patients suffer bedsores after a neglectful nurse fails to check up on them as frequently as necessary. One area of care that is infrequently discussed is the level of medical care that a nursing home is required to provide.

Of course, nursing homes are not expected to function at the level of a hospital. However, nursing homes should employ properly credentialed staff who are educated on how to care for an at-risk population. Thus, certain failures are inexcusable. According to a local news report, a Veterans’ Administration (VA) nursing home was fined for providing the wrong medication to a resident. Evidently, the home was cited for providing the wrong medication as well as for administering medication in a manner that did not follow the physician’s instructions.

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Maryland nursing homes often include a clause in their pre-admission paperwork indicating that the parties agree to arbitrate any claims that may arise in the future rather than file a case through the traditional means. However, arbitration can be detrimental to nursing home residents, and residents should not assume that they will be precluded from pursuing a personal injury lawsuit based on a signed arbitration contract.

There are several ways that a Maryland arbitration agreement can be held to be invalid and unenforceable. A recent opinion issued by a state appellate court illustrates the concept of “mutuality of assent,” which is essentially the requirement that both parties know what they are agreeing to when a contract is signed.

The Facts of the Case

The case did not deal with a nursing home lawsuit, but it is relevant because it shows how courts interpret arbitration contracts. According to the court’s opinion, the contract at issue involved a “home service agreement,” by which the defendant would pay for and arrange to complete home maintenance on the plaintiff’s homes in exchange for the contract term price of $1050.

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While sexual assault has always been a concern among those who have family members living in Maryland nursing homes, given the recent headlines those concerns have come to the forefront. Back in December of last year, a 29-year-old resident in a long-term care facility gave birth to a baby boy. The woman had been incapacitated and in long-term care since she was three years old.

According to a recent news report, police have arrested a man they believe raped the woman. After the resident gave birth, police obtained a DNA sample from the baby. Police then obtained DNA samples from each of the nurses at the care facility where the resident was staying. Evidently, the DNA taken from the baby matched one of the nurses who was charged with overseeing the resident. The nurse had been working at the facility since 2011, and there is no indication at this point that there had been any previous complaints or similar incidents. Of course, given the compromised condition of the residents in the facility, it is likely that other incidents would not necessarily be reported.

Signs of Sexual Assault

Certainly, this news comes as a shock to many. However, sexual abuse is not uncommon in nursing homes and skilled care facilities. One reason for this is the compromised condition of the residents make them ideal victims for predators. In addition, many nursing home residents have little contact with those outside of the facility, and fear that they may not be believed if they did make a report.

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One of the most controversial topics in Maryland nursing home lawsuits is the applicability and enforcement of arbitration agreements. An arbitration agreement is merely an agreement between parties to submit any disputes that may arise between the parties through arbitration, rather than through the court system.

What Is Arbitration?

Arbitration is a way to resolve claims between parties that does not involve a judge or a jury. Instead, the claim is presented to an arbitrator who hears evidence and arguments from both sides and decides the case.

Arbitration is different from traditional litigation for several reasons, including:

  • the procedural rules governing when a claim must be filed and how quickly the claim is heard are determined by the arbitrator;
  • the rules of evidence that are applied in an arbitration proceeding may be different from the rules that would apply in court;
  • for the most part, an arbitrator’s decision is final, meaning that it cannot be appealed by either party in the event of an unfavorable outcome; and
  • the decisions of an arbitrator are usually kept secret.

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In a shocking case that sounds as an alarm to families of Maryland nursing home residents as well as those throughout the country, police are investigating after a nursing home resident in a vegetative state gave birth on December 29 in Arizona. According to a recent news report, the woman was 29 years old and had been in a vegetative state and coma for over a decade after she had almost drowned, according to a news source. Staff at the facility reportedly did not realize the patient was pregnant until she went into labor.

Evidently, the company’s CEO resigned after heading the company for 28 years and police opened an investigation into the circumstances surrounding the pregnancy. The facility specializes in caring for individuals with intellectual disabilities. According to the Medicare website, the facility received a “below average” rating from health inspectors in 2017. The Centers for Medicare & Medicaid Services also gave the facility’s quality of care a rating of “much below average.”

The state’s Department of Health Services stated that it would conduct an inspection of the facility after the incident. Another incident at the facility was reported in 2013. At that time, a male staff member made sexually explicit remarks to patients, according to the Arizona Department of Health Services. Phoenix police are now conducting an investigation and collecting DNA from all male staff members at the facility. The family’s attorney stated that the family is “outraged, traumatized, and in shock by the abuse and neglect of their daughter” at the facility. The attorney also said that the baby was “born into a loving family and will be well cared for.”

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