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Under the current state of the law, Maryland nursing homes can ask potential residents to sign arbitration agreements. Often, these agreements are included in the pre-admission paperwork that must be completed before a resident is admitted. However, there are many issues that an arise affecting the enforceability of an arbitration agreement.

For example, courts have repeatedly held that an arbitration agreement is not valid if one party tells the other they must sign it. Similarly, for the most part, an arbitration agreement must be signed by the resident, because this is the person whose rights the agreement affects. However, routinely, nursing homes do not comply with the procedural and substantive rules governing arbitration agreements, rendering the agreements unenforceable. In a recent opinion, a state appellate court held that an arbitration agreement was unenforceable based on several criteria.

According to the court’s opinion, the plaintiff’s mother was a resident at the defendant nursing home. During her stay, she developed severe skin ulcers that ultimately required the amputation of her leg. The plaintiff’s mother died just a few days after leaving the home, and the plaintiff filed a wrongful death lawsuit against the facility.

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.

In the tragic event of a death due to a Maryland pharmacy error, the victim’s family may be able to file a wrongful death claim against the person or entity responsible for the error. Maryland wrongful death claims are intended to compensate family members for their own loses due to their loved one’s untimely death. Maryland’s Wrongful Death Act (the “Act”) allows some family members to file suit against the party at fault. Normally, it must be filed by a spouse, parent, or child of the decedent, but may be filed by another dependent in some cases. The Act was enacted in order to compensate family members, as opposed to the decedent’s losses, which could be recovered by the decedent’s estate.

Under the Act, a claim can be brought for a wrongful act, neglect, or default that would have allowed the decedent to file a claim for damages if the decedent were still alive. A wrongful death claim can only be filed once and must be filed within three years of the decedent’s death. There are some exceptions, including in the case of an occupational disease.

The plaintiffs in a wrongful death claim may be able to recover compensation for emotional pain and suffering, loss of companionship, mental anguish, parental care, marital care, filial care, advice, and guidance.

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.

Maryland nursing home abuse takes a significant physical and psychological toll on the victims and their families. Recently, a national news outlet reported on a disturbing nursing home abuse case. Evidently, nursing home aides were accused of abusing a resident, recording the incident, and posting it on SnapChat. Maryland nursing home residents may face these situations, and families must be aware of this type of abuse.

Historically, people thought nursing home abuse to be mostly physical in nature. However, verbal abuse and public shaming through social media is a very real form of abuse in today’s society. Some common signs that a loved one is suffering from abuse or neglect are weight loss, changes in temperament, and unexplained injuries. However, sadly, many elderly victims suffer from severe memory loss or dementia and may not be able to recall the abuse. If a family suspects abuse and emergency medical treatment is needed, the family should contact police officials.

Additionally, the family should gather information to substantiate their claim of abuse or neglect. Loved ones should take photos, speak with other residents, and save anything that may contain evidence. Evidence gathering includes taking screenshots of any internet posts and keeping videos posted on social media platforms. Loved ones must be removed from an unsafe living arrangement. Finally, families should contact a Maryland nursing home abuse attorney to discuss their rights and remedies.

For decades, arbitration has been the favored way for Maryland nursing homes to resolves dispute made by residents and residents’ families. In part, this is because arbitration is confidential, meaning that the facility does not need to worry about the news of a resident’s injuries or suffering getting out. However, there is also evidence suggesting that nursing homes get better results in cases that go to arbitration. Arbitration is also less expensive, which primarily benefits nursing homes, as they are the party who is frequently engaged in litigation.

While arbitration is rarely, if ever, in the best interest of a nursing home resident, many residents end up signing agreements to arbitrate their claim. Often, prospective residents are presented with these agreements in highly stressful times when they may feel as though they have limited options. Other times, residents sign arbitration agreements because they do not fully understand the rights they are giving up by signing, and feel pressured to sign. Consequently, many residents who suffer abuse or neglect at the hands of their caregivers are devastated to learn that they cannot file a lawsuit in court, and must proceed through the arbitration process.

In 2017, the Center for Medicare and Medicaid, under the Obama administration, implemented a ban on arbitration agreements in pre-admission paperwork for all nursing homes that accepted Medicare or Medicaid. However, under a new rule scheduled to go into effect on September 16, 2019, nursing homes will once again be able to include arbitration contracts in their pre-admission paperwork.

Most nursing home admission paperwork contains an arbitration clause. By signing an arbitration clause, a nursing home resident agrees to resolve any claims that may arise between the resident and the nursing home through arbitration, rather than through the court system. It is widely understood that arbitration offers great benefits to nursing homes, often to the detriment of nursing home residents and their family members. Thus, plaintiffs in Maryland nursing home lawsuits often seek to void arbitration clauses so they can pursue a claim in court.

Recently, a state appellate court issued an opinion in a nursing home negligence lawsuit requiring the court to determine if an arbitration clause required the plaintiff to resolve his wrongful death claim through arbitration. According to the court’s opinion, the plaintiff’s father passed away while in the care of the defendant nursing home. The plaintiff filed a wrongful death claim in court against the parent company of the nursing home.

Evidently, the plaintiff’s father signed an arbitration clause upon his admission to the facility. The clause was signed by the plaintiff’s father and a nursing home representative. The document contained a “delegation clause” stating that the agreement included “all affiliates, parents, officers, owners, members, agents, successors and assigns” of the nursing home. The nursing home claimed that the agreement required the plaintiff to resolve his claim through arbitration.

The federal government is keenly aware of the fact that many Maryland nursing homes, as well as nursing homes across the country, routinely provide residents with an insufficient level of care. For this reason, each year, the federal government releases a report detailing the state of the country’s nursing homes. This June, Senators Casey (D-PA) and Toomey (R-PA) released a report entitled “Families’ and Residents’ Right to Know: Uncovering Poor Care in America’s Nursing Homes.”

The report begins by noting that aging citizens who live in nursing homes too often experience “outright neglect,” and that some residents are subjected to physical or sexual abuse. In an attempt to reduce the number of homes exposing residents to this neglect and abuse, the federal government implemented the Special Focus Facility (SFF) program. The SFF program seeks to identify the most problematic nursing homes across the country and increase supervision over these facilities. Once a facility is in the SFF program, it must be inspected no less than once every six months. Non-participants must be inspected once every 15 months.

The selection process for the SFF program focuses on those nursing homes that “persistently underperform in required inspections.” Under the SFF program, up to 88 nursing homes are selected, which amounts to less than .6 percent of all skilled care facilities in the United States. These facilities are referred to as “participants,” and the government releases the name of the facility to the public to assist potential residents in making important care decisions.

In some Maryland nursing home abuse and neglect cases, the determination as to whether a plaintiff’s claim is heard by an arbitrator or by a court can mean the difference between success and defeat. Most legal experts agree that nursing home arbitration contracts only benefit the nursing home. Thus, one of the most common preliminary matters in nursing home lawsuits is determining whether there is a binding arbitration clause.

As a general rule, arbitration clauses are binding on all parties if they are valid and properly executed. However, numerous issues can preclude the enforcement of an arbitration clause. One question that courts have recently been wrestling with is when a resident’s loved one (rather than the resident) signs the arbitration agreement. Recently a state appellate court decided that it would not review an appeal from a nursing home resident whose husband signed the agreement on her behalf.

According to the lower court’s opinion, the plaintiff was admitted to the defendant nursing home. At the time of admission, the plaintiff was accompanied by her husband, who signed the pre-admission paperwork on the plaintiff’s behalf. Among the documents the plaintiff’s husband signed was an agreement to arbitrate any claims arising from the plaintiff’s residence at the facility.

Arbitration clauses are very popular in the nursing home industry. Arbitration is a way to resolve a legal dispute without using the court system. Generally, arbitration is quicker and less expensive than a traditional lawsuit. At first glance, this may seem like a good alternative for many Maryland nursing home residents who want to bring a case against a negligent or abusive nursing home employee. However, arbitration typically favors the nursing home and should be avoided whenever possible.

Often, the paperwork presented to a prospective resident or the loved one in charge of their care contains an arbitration clause. These clauses essentially waive a resident’s right to pursue a case against the nursing home in court for any claim brought against the nursing home. However, nursing home residents are not provided anything waiving this right, and should carefully consider whether it is a right they want to waive.

Arbitration involves an independent arbitrator who hears the claim and renders a decision. The arbitrator that will hear the case is determined by the nursing home, and is typically included in the arbitration clause. Arbitration hearings often have strict time frames and relaxed rules of evidence, allowing savvy nursing homes who are familiar with the process and its rules to effectively defend against cases brought by residents. In a way, this gives nursing homes the “home-field advantage.”

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