Mandatory Arbitration Provisions The Law in Maryland and West Virginia

What is Mandatory Arbitration and How Is It Used By Nursing Homes?

Making the decision to put a loved one into a nursing home or long-term care facility can be both emotional and exhausting. Nursing homes are fully aware of this and use it to their advantage. In an attempt to limit the rights of patients, many large nursing home chains use mandatory arbitration provisions in which the resident agrees not to file a lawsuit in Court. Most residents do not even realize they have signed such paperwork, given the large amount of paperwork completed upon admission. Often these agreements are signed by patients who are ill or demented or by family members who are not familiar with their rights.

We have all signed a document or agreement without fully reading it at some point in our lives. Whether it be the paperwork for a job, the terms and conditions of our new cellphone, or when being admitted to a hospital. Not only that, but people often feel pressured into signing pages upon pages of fine print without much ability to process or contest the information. This creates an unbalanced power dynamic. All mandatory arbitration agreements result in the nursing home patient waiving the right to a jury trial and to make matters worse, there are often cost-shifting provisions that require the unsuccessful Plaintiff to pay the costs of the nursing home.

Many U.S. courts have traditionally upheld mandatory arbitration clauses as being enforceable, in part because they reduce the burden on the court system, but this is at the cost of a person’s individual rights. Our office has been successful in challenging some of these agreements, but results vary from state to state.

Some states, including Virginia, allow one to opt-out of such a provision within 60 days of sustaining an injury or within 60 days of one’s appointment as administrator of the Estate. Given these time limitations, if you have a case in Virginia, you should contact a nursing home attorney as soon as possible to evaluate your opt-out options.

The Maryland Court of Appeals has issued some important rulings limiting the use of Mandatory arbitration agreements.  In the landmark case of Futurecare Northpoint v. Peeler, 229 Md.App. 108, 143 A.3d 191 (2016) the highest court in Maryland ruled that if a patient signs such an agreement and is later subject to wrongful death, the statutory beneficiaries (family members with rights to bring a claim) cannot be subject to the jury trial waiver.

This was the right decision, explains nursing home attorney Jeffrey J. Downey.   Mandatory arbitration agreements are contracts and to have a valid contract, all parties must consent.  The Appeals court in Futurecare found that a wrongful death claim creates a new and independent cause of action that does not belong to the decedent – but rather her family members who were never parties to the agreement.

This ruling stands in sharp contrast to the law in West Virginia.  In the case of Stonerise Healthcare LLC & Keyer Center v. Oates, (W. Va. 2020) the West Virginia Supreme Court came to the opposite conclusion.  It held that family members who never signed a mandatory arbitration agreement were precluded from bringing a wrongful death claim in Court.

A compelling dissent pointed out that the essential purpose of the wrongful death act is to compensate the beneficiaries for the losses they suffered from the patient’s death.  This decision follows a host of problematic legislation that has impacted a resident’s right to bring a lawsuit in West Virginia, one of the poorest states in the nation.  For example, there is only a one-year statute of limitations, and survivorship cases are typically capped at $250,000 in non-economic damages.

I have litigated nursing home cases in West Virginia, explains attorney Downey. Many residents who are neglected or killed in West Virginia nursing homes never get their day in court because of these and similar limitations. Attorneys practicing in this area need to aggressively challenge mandatory arbitration agreements whenever possible.  Consumers also need to refuse to sign such agreements at the time of admission.

Contact Our Law Firm To Discuss Your Claims

If someone you care about experienced injury or death due to nursing home or assisted living negligence and/or abuse, you should contact an experienced nursing home neglect attorney to protect your rights. A lawyer can advise you about your rights, identify whether there is an arbitration clause in the contract you signed, and help you get out of the agreement where the law supports your position.

Free Initial Consultations | We Can Come To You | No Attorney’s Fees Unless We Win Your Case.  Licensed in Virginia, DC, and Maryland.

The Law Office of Jeffrey J. Downey

8270 Greensboro Drive, Suite 810

Mclean, VA  22102

Phone 703-564-7318 or 703-564-7318


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