Maryland Nursing Home Lawyer Blog

New Legislation May Prohibit Arbitration Agreements in Maryland Nursing Home Contracts

May 7, 2019 | Lebowitz & Mzhen

The United States Constitution guarantees all citizens equal access to our court system. However, courts have repeatedly held that the right of access to the court system, like many other important rights, can be waived. In theory, by signing an arbitration agreement a person gives up their right to file any future claim in the court system and agrees to resolve the claim through binding arbitration.

Arbitration clauses are used in many situations, including employment contracts, cell phone contracts, and, of course, nursing home contracts. However, there is a serious concern that those who are asked to sign an arbitration agreement – and, in the process, give up fundamental constitutional rights – do so unknowingly. Indeed, it is not uncommon for the victim of Maryland nursing home abuse to file a claim, only to learn for the first time that they must resolve the claim through arbitration

Despite the important rights that a person gives up when agreeing to arbitration, too often, arbitration clauses consist of a few paragraphs in a much longer contract. These contracts are usually written in small print and, at first glance, would seem to be unimportant. Thus, when consumers, nursing home residents, or employees are presented with these lengthy documents, they frequently overlook the arbitration clause, or at least fail to fully comprehend the importance of the document that they have just been asked to sign.

Are Maryland Nursing Home Arbitration Decisions Final?

April 26, 2019 | Lebowitz & Mzhen

When someone is admitted as a resident in a Maryland nursing home, they are likely presented with pre-admission paperwork containing an agreement to arbitrate. These agreements, if enforceable, require that any Maryland nursing home abuse or neglect claims arising from a resident’s relationship with the facility are resolved through arbitration rather than through the court system.

In previous posts, we have discussed the pros and cons of resolving claims through arbitration from the resident’s perspective. It is important to note that, by agreeing to arbitration, Maryland nursing home residents give up many of their rights. Most notable of the rights that are waived is that of access to the court system and to appeal an adverse judgment.

For the most part, nursing home arbitration decisions are final. However, if the arbitration was not properly conducted, one of the parties involved in the arbitration may have been deprived of a statutory or constitutional right. In these situations, an arbitration decision can be reviewed by a court. However, establishing that a decision is entitled to review can be difficult. Recently, a state appellate court refused to reconsider an arbitration award that was issued against a nursing home.

Charitable Immunity in Maryland Nursing Home Abuse and Neglect Cases

April 17, 2019 | Lebowitz & Mzhen

While most Maryland nursing homes and skilled care facilities are for-profit businesses, some Maryland nursing homes operate as non-profit organizations. The question occasionally arises whether a nursing home’s status as a non-profit organization can affect a resident’s ability to recover for any injuries that were due to the neglect of the facility’s staff members. The answer, as is often the case in legal questions, is “it depends.”

Maryland law offers immunity to both volunteers as well as to charitable organizations. Depending on the specific circumstances of a case, either or both of these immunities may apply. Maryland law defines a charitable organization as one that is tax-exempt under § 501(c)(3) of the Internal Revenue Code.

Under the Maryland Volunteer Service Act, those who volunteer at charitable organizations cannot be held liable for amounts in excess of any personal insurance they carry for any injuries caused by the acts or omissions of “an officer, director, employee, trustee, or another volunteer.” When a volunteer’s actions result in injury to another, the volunteer will be afforded the same protection unless their actions constitute “gross negligence, reckless, willful, or wanton misconduct, or intentionally tortious conduct.” Importantly, the Volunteer Service Act does not grant complete immunity to qualifying volunteers and allows for a Maryland nursing home resident to pursue a claim for compensation. However, the resident will only be able to recover up to the limits of the individual’s insurance coverage.

Maryland Arbitration Agreements Must Be Understood to Be Enforceable

April 11, 2019 | Lebowitz & Mzhen

The validity and enforceability of arbitration agreements have recently become very important issues in Maryland nursing home abuse and neglect cases. Typically, these agreements are contained in the pre-admission paperwork that a resident or their loved one is asked to sign before the resident is admitted. Needless to say, this is a very stressful and emotional time, and prospective residents and their family members may not always have a full appreciation for the rights they give up by signing an arbitration agreement.

As a general rule, courts will enforce an arbitration agreement as long as it is valid and executed correctly. One crucial question that courts will ask when determining the validity of an arbitration agreement is whether both parties knew what they agreed to when they entered into the agreement. A recent article discusses a case in which an arbitration agreement did not bind a nursing home resident because the contract was signed by her son, who did not speak English.

Evidently, back in 2017, an 86-year-old woman was admitted to the defendant nursing home after a left-knee replacement surgery. Because of her age and frailty, the woman was identified as a high-risk patient. During her stay at the defendant nursing home, she claimed that a nurse at the facility “recklessly pushed” her wheelchair into a bathroom door, causing her to break her patella.

Residents of Washington, D.C. Veterans’ Administration Nursing Homes May Be in Jeopardy

April 5, 2019 | Lebowitz & Mzhen

One would like to think that aging service members are provided with the care and compassion they deserve as they begin to require more and more assistance with their daily routine. However, Veterans’ Administration (VA) nursing homes have been continually under scrutiny for the poor quality of care they provide residents. A recent report illustrates just a few of the horrors that VA nursing home residents across the country are experiencing.

According to a report by USA Today, in VA nursing homes across the country, veterans are suffering actual harm due to a variety of deficiencies. Evidently, private inspectors determined that residents in 52 of the 99 surveyed homes suffered some type of actual harm based on the inadequate level of care being provided by staff. A Washington, D.C. VA nursing home was among those in which residents suffered actual harm. Several other VA nursing homes were found to have put residents in “immediate jeopardy.”

One of the most common problems inspectors found was that residents in many of the VA nursing homes suffered from preventable bedsores. Bedsores develop when a person who is confined to a bed remains idle for too long. Bedsores can be prevented by frequently rotating a resident, or providing a resident with ample cushion under their body. Inspectors noted that one resident developed five bedsores in just six months. However, when inspectors went to visit this resident, they determined that no staff member had moved the man, or provided him with additional cushions to alleviate the condition.

The Extent of a Maryland Nursing Home’s Duty to Protect Others

March 29, 2019 | Lebowitz & Mzhen

Maryland nursing homes have a responsibility to provide a safe environment for residents. But how far does this responsibility go towards others? In a recent case, the plaintiff sued a nursing facility he was shot by a resident. He argued that the facility had a duty to warn others of the danger the resident posed, as her mental health provider.

The Facts

According to the court’s opinion, the resident was living at the defendant facility at the time, which was a therapeutic community residence. The resident had a history of mental illness, including multiple admissions for psychiatric care, restraining orders prohibiting her from contacting certain persons, and a criminal record, which prohibited her from possessing a firearm or other weapons. The resident went to a shooting range and shot the owner of the shooting range in the head and stomach. The owner survived but sustained serious injuries that required constant medical attention for the rest of his life.

The plaintiff claimed that the facility knew or should have known that the resident posed a serious risk of danger to third parties, and had a duty to warn him. The court determined that the facility did not have a duty to prevent the resident from harming the plaintiff. The court explained that the general rule is that there is no duty to act to prevent harm to third persons. The court noted that mental health professionals in that state have a limited duty to take reasonable action to protect identified third parties that their patients have threatened serious physical harm. However, the court found that in this case, the resident had only told the facility that she wanted to go target shooting “as a way for her to deal with aggression.” Accordingly, this did not make the owner part of a determinate and identifiable class that faced a particularized threat, and the facility did not have a duty to protect him or warn him.

Are Family Members of Maryland Nursing Home Residents Bound by Arbitration Agreements?

March 21, 2019 | Lebowitz & Mzhen

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.

New Legislation May Impact Maryland Nursing Homes’ Ability to Force Arbitration on Residents and Their Families

March 14, 2019 | Lebowitz & Mzhen

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.

Inadequate Supervision and Neglect in Maryland Nursing Homes

March 5, 2019 | Lebowitz & Mzhen

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.

Maryland Nursing Home Lawsuits Are Not Contingent on a Criminal Prosecution

February 25, 2019 | Lebowitz & Mzhen

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.