Articles Posted in Relevant Nursing Home Case Law

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.

Every year, more and more Maryland residents are moving into nursing homes. As the population ages and life expectancy rises, nursing homes are supposed to provide a safe environment for those who can no longer care for themselves. Unfortunately, however, instances of nursing home abuse and neglect still occur in Maryland facilities and can result in serious injuries or even death for the residents. Acknowledging the pain and suffering these incidents can cause, Maryland state law allows injured victims or their families to sue a negligent nursing home to recover for their injuries. However, what some residents might not realize is that they may sign away their right to sue when signing the initial agreement forms with the nursing home.

Arbitration agreements are common among nursing home agreements, and oftentimes are signed without the resident even reading or understanding what they say. When signed, arbitration agreements can prevent a resident from suing the nursing home in court. If there is a dispute, the resident is forced to settle it through a confidential arbitration process, with no ability to appeal. Nursing homes prefer arbitration because it is faster, cheaper, and the proceedings are confidential, meaning they are less likely to suffer reputational harm. However, most residents are shocked to find out they signed away their right to a day in court.

Sometimes, injured residents who hope to sue a nursing home may attempt to invalidate their contract with the nursing home as a whole. Their strategy is that if the contract as a whole is invalid, then the arbitration agreement is as well. However, that strategy does not always work because a court might find that different clauses in the contract are severable, meaning that they are enforceable on their own.

These days, nursing homes in Maryland routinely incorporate arbitration provisions or agreements into their admission paperwork. People often do not question signing the agreement—until nursing homes try to force them into arbitration later on. Arbitration allows nursing homes to avoid costly litigation in a private decision-making process, generally with no right to appeal. However, an arbitration agreement may not be valid in some cases. A patient may lack the necessary capacity to enter into a contract, the person may have signed under duress, the provision may violate a state, federal, or local law, or the person who signed the agreement may not have had to the legal authority to sign on the resident’s behalf, as in the case below.

Court Invalidates Arbitration Agreement Signed by Resident’s Son

In a recent case before another state’s appeals court, the court invalidated an arbitration agreement that was signed by the resident’s son. In that case, the mother had been a resident of the nursing facility for about a month in 2016. The son signed an admission agreement and an arbitration agreement when his mother was admitted to the nursing facility. The son signed under “Responsible Party.” Under the agreement, Responsible Party was defined as a person with legal authority to sign for the resident, including a legal guardian or an attorney-in-fact.

When someone is unable to care for themselves, they will often end up staying in some sort of residential institution, such as a nursing home or a rehabilitation center. These facilities are supposed to care for individuals and make their lives easier. Maryland law imposes a duty on these facilities to care for their residents, and if residents suffer abuse or neglect, such as neglecting medical needs or causing psychological harm, they can hold the institution liable in a civil negligence suit.

One of the most common types of lawsuits filed against a nursing home is a medical malpractice claim, particularly for failing to transport a patient to the hospital when they clearly needed to be treated by a professional. In a recent opinion, a state supreme court considered one of these cases, affirming a jury verdict awarding over $2.2 million dollars to the plaintiff.

According to the court’s written opinion, the seventy-six-year-old plaintiff began experiencing significant knee pain in her right knee, causing her to undergo surgery in early 2014. To recover from the surgery, the plaintiff was transported to a rehabilitation center. While in the center, the plaintiff continued to experience excruciating pain and then began showing signs of confusion in mid-March of 2014. The notes taken by nursing assistants caring for her indicated her confusion, which got worse throughout the night, an elevated heart rate, massive bruising on her leg, and that her right foot curled inward and appeared to be limp. According to the notes, the plaintiff told the nursing assistants that she was in the worst pain of her life, asking them to shoot her to end her misery.

More and more Maryland nursing homes are having their residents sign arbitration agreements, raising concerns for victims of nursing home injuries, abuse and negligence. Arbitration agreements force residents to settle disputes with the nursing home through arbitration, a private and confidential process with no possibility of appeal, rather than having the option to bring a civil negligence suit in court. Essentially, by signing an arbitration agreement, which may or may not be obvious and apparent in the nursing home’s contract and forms, Maryland residents may be waiving their right to sue if something goes wrong.

Arbitration agreements come in many forms, however, and just because a resident signed one does not necessarily mean that they have unequivocally waived their right to sue. Many arbitration agreements dictate a specific type of claim that must be settled in arbitration, leading to eventual disputes over whether or not a plaintiff’s claim falls into that category. For example, a state appellate court recently issued an opinion considering such a dispute in a wrongful death and negligence claim. According to the court’s written opinion, the resident was admitted to the nursing home in 2013 with various cognitive and physical ailments, including Parkinson’s disease, heart disease, dementia, psychosis, functional quadriplegia, and chronic kidney disease. When admitted, her son, as her representative, signed an “Admissions Agreement.” This agreement included an arbitration clause for “any dispute as to medical malpractice,” which was further defined as disagreement over whether medical services rendered to the resident was necessary, unauthorized, or improperly, negligently, or incompetently rendered.

In 2016, a little over three years after living in the home, a nursing assistant was pushing the resident back to her room after breakfast. While on their way, the resident’s foot got caught in a loose cord, which catapulted her headfirst onto the floor, breaking her neck. Tragically, the resident died five days later due to her injuries. In the aftermath, her estate sued the nursing home for wrongful death and negligence, and the nursing home moved to compel arbitration under the Admissions Agreement’s arbitration provision. However, the court found that the nursing home could not compel arbitration under their agreement, because the agreement only covered disagreements over medical services rendered. Although the incident led to medical services and medical evidence was produced against the defendant nursing home, the dispute was not itself over medical malpractice, and thus the nursing home could not force the plaintiffs to arbitrate.

Expert witnesses can be extremely helpful in Maryland nursing home abuse cases. They can help explain to the judge or the jury the extent of the injuries, or how the incident occurred. Typically, expert witnesses are very helpful for plaintiffs and may help them win their cases against negligent nursing homes. However, there are some instances where expert testimony is required—not just helpful—and plaintiffs might even lose if they do not have it.

Recently, a state appellate court issued a decision discussing when expert witnesses are needed to prove a claim of negligence and when they are not. According to the court’s written opinion, the complaint was brought as a wrongful death suit against the nursing home, in part for negligent staffing. The victim, a 71-year-old resident in the home, had been living in the facility for eleven years. One night, a licensed practical nurse (LPN) entered his room during her night shift, saw vomit on the resident’s clothing, and noticed that his stomach was distended. Concerned, the LPN reported what she had seen to other staff members but took no further action. Importantly, there was no Registered Nurse (RN) on staff during the night shift. It wasn’t until around 12 hours later, the next morning, when an RN actually examined the resident and had him taken to the emergency room. The resident was treated in the emergency room and then the intensive care unit, but unfortunately died that night from bowel complications.

The resident’s family and estate brought a wrongful death suit against the nursing home, claiming that the facility was negligent by not staffing the night shift with someone who could have properly assessed the victim’s condition. According to the plaintiffs, had there been an RN or someone else on staff, they likely would have realized the severity of the resident’s condition and transferred him to the hospital earlier, which may have saved his life. The defendants attempted to dismiss the claim against them, arguing that the staffing decision required professional nursing judgment, making it professional negligence, rather than ordinary negligence. A key difference between the two is that professional negligence requires expert testimony, something the plaintiffs did not have.

When a Maryland family chooses a nursing home for their loved one to stay in during their last years of life, they want nothing more than the home to keep their loved one safe and well taken care of. Unfortunately, however, far too many Maryland families will experience the devastating impacts of nursing home abuse and neglect each year, which can lead to serious injuries or even premature death. While Maryland law allows the injured victims or their families to file a negligence suit against the nursing home for injuries and/or wrongful death, potential plaintiffs should keep in mind one common barrier to recovery: statutes of limitations. Statutes of limitations dictate how long a Maryland family has after an incident occurs to file suit against the nursing home. If the statute of limitations runs out, then the family is barred from filing suit and recovering even a penny from the nursing home.

Statute of limitations laws are strict and can bar a plaintiff who files even a few days too late. For example, take a recent state appellate case. According to the court’s written opinion, the deceased was hospitalized in February of 2012 due to severe abdominal pain. The institution caring for him ran a number of diagnostic tests and examinations but failed to administer a CT scan for a full week, even after a physician ordered one. When a CT scan was finally performed, it revealed the perforation of the victim’s colon and found that his bowel was failing. The victim died a few days later.

The victim’s wife, who was the plaintiff in this case, filed a wrongful death action in May of 2016, alleging negligence for not administering a CT scan sooner, which could have potentially saved her husband’s life. However, her suit was found to be barred by the statute of limitations. The court found that the statute of limitations for the plaintiff’s claim expired on May 27, 2016. The plaintiff filed on May 31, 2016, only four days later, but the court had no choice but to dismiss the suit. Tragically, the court in the opinion wrote that the evidence presented in the case did point towards negligence, meaning that the plaintiff may have been able to recover significant monetary damages against the hospital had she filed her suit just four days earlier.

Although one hopes that Maryland nursing home abuse will never happen, state law understands that, when it inevitably does, the individuals affected have a right to bring a civil suit against the nursing home. However, many nursing homes may ask residents and their families to sign away that right by signing an arbitration agreement. Arbitration agreements, which vary depending on the nursing home, generally bind both the resident and the home to settling any disputes that arise through an arbitrator, rather than in a judicial forum.

With a valid arbitration agreement, when an individual is injured or suffers a premature death as the result of the nursing home’s negligence, the victim or their family must pursue their claim confidentially, through an arbitrator chosen by the facility. Arbitration, although it is quicker and potentially less burdensome than bringing a suit in court, may still be disadvantageous for plaintiffs. For example, nursing homes typically have the power to choose the arbitrator, who acts as the judge, and they may choose one they have worked with before. Additionally, there is no jury, and no appellate process.

Generally, signed arbitration agreements are valid and enforceable, and a nursing home can compel arbitration if a resident or their family ever file a suit against them in court. However, like all contracts, nursing home residents can challenge a contract that they signed without knowing what they were signing, claiming they never agreed to waive their right to sue. Recently, a state appellate court considered a case where this happened. According to the court’s written opinion, the plaintiff required 24-hour nursing care due to multiple disabilities. When he was admitted to the defendant nursing home, they had him sign 12 documents, including an arbitration agreement, but the facility’s employees never explained the arbitration agreement to him or gave him a copy to review.

Although it may be difficult to comprehend, nursing home abuse is more common than most people think. In fact, thousands of nursing home residents report abuse or neglect each year. Many of these victims turn to the court system for justice. As experienced Maryland nursing home abuse attorneys, one of the most common questions we receive is, under what circumstances can a nursing home be held liable for an employee’s conduct?

A recent decision issued by a Virginia appellate court considers this exact question. According to the court’s opinion, a nursing assistant molested and raped an 85-year old nursing home resident. Before the case reached trial, the woman died from unrelated causes. However, the woman’s estate pursued a Virginia nursing home abuse case against the facility where the rape occurred.

The estate made several claims against the nursing home, including one that the nursing home was vicariously liable for the employee’s actions. Vicarious liability is a legal theory that allows for one party to be held responsible for another party’s actions. Personal injury plaintiffs often use the theory of vicarious liability to hold an at-fault party’s employer liable for their injuries. However, vicarious liability only applies when the defendant is acting within the scope of their employment.

Generally, when a nursing home resident enters a facility, the nursing home administration asks the resident (or the loved one accompanying them) to sign an arbitration agreement. If valid, arbitration agreements require the resident to resolve any cases that arise between the parties through arbitration. However, when a Maryland nursing home resident is the victim of abuse or neglect, there are frequently several parties – often the resident’s children – who may pursue a claim against the facility. This can complicate the effectiveness of arbitration, as shown by a recent state appellate decision.

According to the court’s opinion, a son helped his mother get admitted to a nursing home after a shoulder injury. Upon admission, the woman was confused and could not sign any paperwork due to her injury. Thus, her son signed the pre-admission paperwork, including an arbitration agreement.

While in the facility’s care, the woman passed away due to what appeared to have been nursing home neglect. The woman’s son, as well as her other children, filed a wrongful death case against the nursing home. The nursing home objected to the lawsuit being filed in court, pointing to the arbitration agreement signed by the woman’s son.

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