Earlier this month, the South Carolina Supreme Court issued a written opinion illustrating how a party’s failure to be upfront with its intention to compel mediation may prevent that party from later compelling mediation. In the case, Johnson v. Heritage Healthcare of Estill, the court determined that the defendant nursing facility waived its right to seek arbitration after the nursing facility failed to demand arbitration when the plaintiff initially filed the lawsuit.
The plaintiff’s mother passed away while in the care of the defendant nursing home. After her mother’s death, the plaintiff filed a wrongful death case against the nursing home, alleging that the negligent care it provided to her mother led to her death. Prior to admitting her mother to the home, the plaintiff had been granted a Power of Attorney and had signed an arbitration agreement, consenting to submit any claims to an arbitration panel rather than pursuing them through the court system.
Once the defendant nursing home got notice of the claim, it answered the complaint, asserting several defenses. One of the defenses cited was that the plaintiff had agreed to seek arbitration, rather than use the court system, in the contract signed prior to her mother’s admission. The nursing home also sought a discovery order from the court, ordering the plaintiff to disclose certain documents. Importantly, while the nursing home cited arbitration as a defense, it never actually demanded arbitration or initiated arbitration proceedings. It was not until eight months later that the nursing home filed a motion to compel arbitration.
The plaintiff claimed that the nursing home waived its right to compel arbitration by engaging in the court process. The plaintiff argued that, had the defendant wanted to compel arbitration, it should have done so immediately, rather than avail itself of the court system through a discovery request. The discovery request, the plaintiff argued, required that she expend considerable resources, and it would not be fair to allow the nursing home to now compel arbitration.
The court agreed with the plaintiff, holding that the nursing home waived its right to compel arbitration by waiting so long to compel arbitration, especially since the nursing home had answered the plaintiff’s complaint and responded with a request of its own. The court explained that the nursing home required the plaintiff to go through considerable trouble and expense, and in doing so, the nursing home waived its right.
Did You Sign an Arbitration Agreement?
Arbitration agreements are commonly required by nursing homes, and they can have a very detrimental effect on a future plaintiff. Arbitration panels are often selected by the nursing home management, and they are not known for their fairness to plaintiffs. It is therefore incredibly important that you do all you can to ensure that you do not get roped into arbitration when it is not necessary.
Do You Need Legal Help?
If you are currently in a dispute with a nursing home over the injuries they caused to your loved one, and the nursing home is seeking arbitration, you may still be able to file a case in a court of law. Not all arbitration agreements are valid, especially those signed by the elderly or their representatives. Call the Maryland nursing home abuse and negligence attorneys at Lebowitz & Mzhen, LLC at 410-654-3600 to set up a free consultation to discuss your case and to see if there is anything we can do to help you.
More Blog Posts:
Appellate Court Reverses Lower Court’s Dismissal of Plaintiff’s Elder Abuse Case, Allowing the Case to Move Forward, Maryland Nursing Home Lawyer Blog, published April 21, 2016.
Nursing Home Resident Dies After Being Left Outside in the Sun, Maryland Nursing Home Lawyer Blog, published May 13, 2016.