Arbitration agreements are often used as a tool against nursing home residents and their families to block litigation in court. There are several disadvantages to arbitration, but there are advantages as well, and some individuals with Maryland nursing home cases may opt for arbitration. Some of the advantages are that claimants may be able to resolve their cases more quickly and more cost-effectively. In addition, because the rules of evidence do not apply, parties may be able to present additional documents and witnesses. Also, arbitration proceedings are generally private, and the parties can decide can keep the proceedings confidential.

In cases that will be resolved through arbitration, there may be a question about the applicable law. Maryland’s Maryland Uniform Arbitration Act (MUAA), governs arbitration in Maryland. The MUAA generally applies if the arbitration agreement contains an explicit choice of law clause that states that Maryland law will govern dispute resolution. But the Federal Arbitration Act (FAA) governs most arbitration disputes as it applies to transactions involving interstate commerce, which has been interpreted broadly. In general, the FAA preempts state law if it contradicts with the FAA, but there are situations in which state law may apply. Both the FAA and the MUAA favor the enforcement of arbitration agreements generally.

In a recent case, a state appeals court ordered a plaintiff’s claim to be resolved through arbitration on the plaintiff’s motion. In that case, the resident signed an arbitration agreement with a nursing home as part of her admission process. The agreement stated that all legal claims against the nursing home had to be resolved in arbitration. After her death, her estate filed a claim against the facility alleging medical malpractice. Per that state’s law, the claim was filed with the state’s Department of Insurance.

Generally, an arbitration agreement, like any other contract, can be enforced against the parties to the agreement. Yet, Maryland nursing home admission agreements (which may include arbitration agreements) are sometimes signed by someone other than the resident. This raises the question of whether the agreement can be enforced against the resident when someone else signed the agreement. If an arbitration agreement was signed, nursing homes will almost always argue that the case must be resolved through arbitration—but the agreement may not always be enforceable. Both parties to the agreement must voluntarily agree and consent to the arbitration. Under Maryland law, someone who purportedly signs an agreement on a nursing home resident’s behalf must have the legal authority to do so.

In a recent state court appellate opinion, the court held that a nursing home resident’s daughter did not have the authority to sign on her mother’s behalf when she was admitted to the facility. In that case, the mother was 77 years old and suffering from dementia and other medical problems when she was admitted to the facility. The daughter and her husband were appointed temporary conservators of the mother before she was admitted to the facility and they signed the paperwork when she was admitted. Among other admission paperwork, the daughter signed an arbitration agreement, and her husband signed underneath the daughter’s name. The mother did not sign the document. Soon after she was admitted she allegedly suffered injuries including fractures and bruises and she passed away a few months later. The plaintiffs filed suit against a senior living facility for negligence, elder abuse and neglect, and wrongful death.

The facility argued that the case was required to be moved to arbitration based on the arbitration agreement the daughter had signed when the mother was admitted. However, the appeals court found that there was not sufficient evidence to show that when the daughter signed the document, she had the authority to bind the mother to the arbitration agreement. The court found that although the daughter and her husband were temporary conservators, and they did not have the authority to make long-term decisions that gave up substantial rights without her consent or without an adjudication that she lacked capacity. In addition, because there was no evidence presented indicating that they intended to sign the agreement on their own behalf, it could not be enforced against them. Therefore, arbitration could not be compelled.

Nursing home negligence and abuse is a huge problem in Maryland and across the entire country. Even before the COVID-19 pandemic hit earlier this year, this blog reported on Maryland nursing homes’ negligence and the devastating effects it can have on residents and their families. However, the COVID-19 pandemic has made matters even worse in many nursing homes. A recent news report documented the harsh realities of COVID-19 within nursing homes and how a widespread lack of safety and sanitation protocols has become potentially deadly.

The report discusses one nursing home that received a citation in October of 2019 for failing to “provide and implement an infection prevention and control program.” The report that accompanied the citation found that staff members would engage in shocking behavior—one, for example, used a soiled towel to wipe a resident’s buttocks and then failed to wash their hands before going back to work. In the aftermath of this report, however, residents’ relatives said that the home did not take steps to change their behavior. One woman discusses the care her 93-year-old mother received, saying that she could not rely on the nursing home staff to take care of her or keep her healthy, and witnessed her being injured or roughhoused. Once, she had to clean fecal matter from her mother’s fingernails or dispose of adult diapers left on her bed. Tragically, the woman’s mother passed away in early April from a COVID-19 outbreak that the nursing home failed to control.

The concerns discussed in this home are not unique. In fact, nursing homes across the nation and in Maryland have very similar problems, with substandard living conditions for residents and a lack of proper sanitation. This caused problems before the COVID-19 pandemic, but has worsened since the pandemic spread across the United States in March of this year, causing outbreaks and deaths among nursing home staff and residents.

Over 1.5 million older adults reside in nursing homes in the United States. Unfortunately, many nursing home residents suffer serious injury or even fatal injuries because of the treatment they experience at these facilities. However, nursing home injury victims may hold the facility or its staff liable for negligence. Mayland nursing home abuse cases often raise many challenges and may involve various federal and state laws. As such, victims and their loved ones should contact an attorney to discuss their rights and remedies.

The Nursing Home Reform Act (NHRA) protects residents of nursing homes that receive certain federal funds. The majority of Maryland nursing homes fall into this category, and as such, the law applies to many facilities. The law provides the minimum standard of care that these nursing homes must comply with to maintain their residents’ physical, mental, and psychological health. Further, the NHRA, outlines parameters that the facilities must abide by to prevent nursing home abuse.

In addition to requiring that the facilities retain adequate staff, develop care plans, assist with daily activities, and provide skilled nursing services, the residents have the right to be free from “physical or mental abuse, corporal punishment, seclusion, and restraints for discipline or convenience.” Many nursing home abuse lawsuits arise after a resident falls, suffers malnutrition or dehydration, experiences a medication error, or is assaulted by a staff member or other resident.

During the hot and humid summer months in Maryland, nursing homes have a responsibility to keep temperatures under control within the facilities in order to keep residents safe and healthy. Older adults are more susceptible to heat-related health issues. As a result, Maryland nursing homes should monitor residents for signs of heat exhaustion and heatstroke and if a resident exhibits symptoms, the facility should immediately check for heat-related health issues and treat residents. A facility’s failure to do so may result in the facility being liable for any resulting injuries.

Heat exhaustion is when a person overheats and can lead to severe heatstroke. Heatstroke can occur when the body temperature rises to 104 degrees or higher. Heatstroke requires emergency treatment, and if untreated, it can affect a person’s brain, heart, kidneys, and muscles. If treatment is delayed, the damage to the body increases, and serious injuries and death are more likely to occur.

A person experiencing heatstroke may exhibit symptoms of confusion, slurred speech, seizures, vomiting, a racing heart rate, and other symptoms. Once someone begins to experience these symptoms, they need to be cooled down immediately, for example, by putting the person in a cool tub of water. Heatstroke as a result of being exposed to a hot environment (as opposed to heatstroke caused by engaging in strenuous activity) is most common among older adults and those with chronic illness, such as heart or lung disease.

In the event of the death of a resident at a Maryland nursing home, the resident’s family may be able to recover compensation through a Maryland wrongful death lawsuit.  However, determining fault in a nursing home abuse or neglect case is not always straightforward, and the assistance of a skilled personal injury lawyer can be an invaluable asset to families who are unfamiliar with the process.

Maryland’s Wrongful Death Act allows family members to file a civil claim against parties at fault for the decedent’s untimely death. A wrongful death claim is intended to compensate family members that have suffered a loss due to the loss of the decedent. It also permits the decedent’s family to hold wrongful actors responsible in the same way that the decedent could have if the decedent had lived.

A wrongful death claim is often filed by a spouse, parent, or child of the decedent. Such plaintiffs are considered “primary” plaintiffs under the Act. Only a primary plaintiff can file a wrongful death claim, if one exists. If the decedent does not have a living spouse, parent, or child, the claim can be filed by a “secondary” plaintiff. A secondary plaintiff is another individual who was related to the decedent by blood or by marriage and who was substantially dependent upon the decedent.

Recently, an industry news source recorded a fascinating podcast including an interview with a former assistant U.S. attorney who discussed legal issues that could arise for nursing homes from the COVID-19 pandemic. The podcast discusses how nursing home abuse and neglect cases may be affected by the virus. The information is very important for residents of Maryland nursing homes or those who have loved ones in these facilities.

The podcast discussed the various immunity laws passed for health care providers as a result of the pandemic in states across the country. These laws are not brand new—some states have long had immunity provisions that kick in automatically whenever a state of emergency is declared. Most of the current immunity provisions in effect now during the COVID-19 pandemic change the level of culpability that facilities can be held to in nursing home abuse or neglect cases that have to do with the disease.

Typically, someone bringing a nursing home abuse or neglect case has to prove that the actions of the facility amounted to negligence and contributed to resulting injuries, illness, or death. However, the immunity provisions typically increase the standards. According to the podcast speaker, the provisions basically say that nursing home facilities and the individuals working within them will no longer be responsible for negligent behavior. Instead, they can only be held liable at a higher standard, such as gross negligence or reckless disregard. This makes it much harder for victims of nursing home abuse or neglect to hold the facilities responsible, because it’s a higher bar of proof to reach. In other words, it might not be enough to show that the nursing home or employees acted negligently or carelessly and caused the spread of COVID-19 or even a COVID-related death. Instead, potential plaintiffs might have to prove that the nursing home was extremely careless, perhaps even maliciously or willingly, which is much harder to prove as a matter of law.

The decision to place a loved one in a Maryland nursing home is rarely an easy one, and typically occurs when the individual is too elderly or sick to take care of themselves. Often, a family feels as if they have no choice but to place their loved ones in a nursing home to ensure that their loved one is taken care of and looked after. Families are often handed stacks of forms to sign—pages and pages—and will sign them right away, usually without reading them, wanting to ensure their loved one is secure in a safe space. However, a sneaky but potentially important term is often hidden in these forms: an arbitration agreement.

Arbitration agreements can force a resident and their family to resolve any disputes—including abuse and neglect claims—through arbitration, rather than through a lawsuit. By signing these forms, the family essentially waives their right to a jury trial.

These arbitration agreements are especially pernicious during the COVID-19 pandemic, as more and more individuals are being dropped off at nursing homes and rehabilitation centers in need of immediate assistance. Oftentimes, families will sign whatever forms are presented to them in an effort to make sure their loved ones are taken care of immediately. In addition, nursing homes are known hotspots for COVID-19 cases across the country, and COVID-19 related deaths surge within them, raising questions about the homes’ adequacy of care.

Recent figures now show that nursing homes make up many of the country’s COVID-19 deaths. In fact, according to a recent report by the New York Times, 43 percent of coronavirus-related deaths in the United States are linked to nursing homes and long-term care facilities. In Maryland specifically, long-term care facilities make up a staggering 60 percent of the state’s COVID-19 deaths.

Throughout the country, COVID-19 deaths in nursing homes and long-term care facilities account for at least 54,000 deaths. So far, many large groups of coronavirus cases have occurred in nursing homes, prisons, and food processing facilities, where social distancing is difficult or impossible. And although there were more cases in prisons and food processing plants, the deadliest clusters have been mostly in nursing homes, where residents are particularly vulnerable because of their age and underlying health problems.

The report found that where large outbreaks occurred in nursing homes, 17 percent of people infected with COVID-19 died, compared to around a five percent death rate among COVID-19 patients in general. In three states, over 75 percent of all COVID-19 deaths are linked to nursing homes and long-term care facilities.

Arbitration agreements are often the source of litigation in Maryland nursing home abuse and neglect lawsuits. Residents and their family members often sign these agreements without giving the terms of the agreement much thought. A state appellate court’s recent decision considered whether an agreement to arbitrate survived even if the remainder of the contract had expired.

According to the court’s opinion, a resident arrived at the defendant nursing home and was immediately given a residency agreement which said the agreement would continue indefinitely. However, the agreement also stated that  either party could terminate the contract immediately upon written notice in the event of the resident’s death or of the resident’s relocation “due to [her] health.” An arbitration clause within the contract stated that all claims arising from the agreement or against the facility would be submitted to arbitration. The facility allegedly failed to administer thyroid medication to the resident for over a year, causing her to suffer health complications. The resident and her daughter (the plaintiffs) filed a lawsuit against the facility based on the facility’s alleged failure to administer the medication. The facility tried to have the case resolved in arbitration, relying on the arbitration clause in the agreement.

The plaintiffs argued that the contract expired in July 2017, when the resident relocated to a new unit and signed a new contract. The court held that even if the rest of the residency agreement terminated, the arbitration agreement did not. The court concluded that the arbitration clause gave the arbitrator the power to decide all disputes concerning the interpretation of the agreement, including when the agreement terminated. The appeals court also held that the plaintiffs failed to make an independent challenge to the arbitration agreement itself. Therefore, the plaintiffs were required to proceed with their claim through arbitration.

Contact Information