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by Jeffrey J. Downey, Esq
A Richmond Circuit Court recently ruled that a mandatory arbitration provision that did not comply with Virginia law was invalid and unenforceable. The new case is Milton Laws v. Westover Hills SNF Operations, LLC, d/b/a Forest Hill Health and Rehabilitation, Law No. CL-24-4211 (Richmond 2024) Click here to review the case.
In Laws, Defendant nursing home filed a plea in bar seeking to dismiss the lawsuit on the grounds that there was a mandatory arbitration clause. This is a clause that typically waives a victim’s right to file a lawsuit in Court and pushes them into the unfavorable forum of private arbitration. The Richmond Circuit Court found that the “Optional Arbitration Agreement” in the admissions contract did not comply with Va. Code § 8.01-581.12(A) because the agreement did not provide for a 60 day opt out period, as required in Virginia. The Court also held that federal preemption did not apply because the admission agreement was not a contract involving interstate commerce.
This is an important decision strenghening a victim’s right to file a lawsuit in Court when he or she is subject to nursing home negligence, explains Virgina nursing home attorney Jeffrey J. Downey. Often these agreements are buried in multiple pages of a long admission contract with lawyer-like language that most people do not even read, let alone understand. Sometimes residents who sign these agreements have dementia or cognition issues at the time they are asked to sign the document. This creates an unbalanced power dynamic in favor of the nursing home. All mandatory arbitration agreements result in the nursing home victim waiving his or her right to a jury trial. And to make matters worse, there are typically cost shifting provisions that require the unsuccessful Plaintiff to pay the costs of the nursing home or split the cost of arbitration, which is more expensive that a free public court.
Victims of nursing home neglect can suffer serious injuries or even death due to malpractice. Common injuries include pressure wounds (bed sores), falls causing fractures, aspiration, infection/sepsis, fecal impaction, misdiagnosis, physical abuse and wrongful death.
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 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 victim’s death. This decision follows a host of bad legislation that has eroded 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 should 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.
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