Virginia Court Rejects Mandatory Arbitration Limitation in Nursing Home Case

By Jeffrey J. Downey, attorney representing victims of elder neglect and abuse

Deciding to move a family member into a nursing home is often a difficult.  However, under no circumstances should a nursing home resident be forced to waive his or her civil rights to pursue a claim in Court, if that nursing home were to cause injury or death of a loved one.

Some nursing homes require their residents to sign mandatory arbitration provisions as a condition of admission. The Obama Administration had written a regulation prohibiting such clauses as a condition of admission, but the Trump administration has reversed course.

However, various Courts including Courts in Virginia have invalidated such provisions.  Recently, in Stevens v. Medical Facilities of America XXXLLP (VLA 018-8-101) (Nelson County 2018).  Judge Michael T. Garrett pointed out a “long list of errors” in a wrongful death case – where the defendant tried to move the case to arbitration.  Judge Garrett ruled that it was up to the Court, not the potential arbitrator, to decide the validity of an arbitration provision.

“Arbitration clauses have often been used by health care providers as a tool prevent lawsuits from being filed or pursued,” explains Downey.  The clauses are sometimes written in vague terms, leaving the signee responsible for initialing and/or signing documents that a party experiencing the duress of putting his loved one in a nursing home may not fully understand.  Sometimes the agreements are signed by demented patients who do not even have capacity to agree to waive their rights. If you are confronted with a mandatory arbitration clause when admitting your loved one, you should cross it out and not sign it.   If it’s part of a larger resident agreement, cross out the mandatory arbitration provision and initial it to make it clear you have rejected that part of the contract.

Lawyers in Virginia should also give thought to opting out of any arbitration provision as soon as you give notice of your claim or within 60 days of your client’s appointment as Administrator of the Estate. Va. Code §8.01-581.12 allows a party to opt out of any malpractice case within 60 days of the termination of healthcare or the appointment of a guardian or personal representative. So, if you are subject to medical or nursing malpractice in Virginia, consider opting out of any mandatory arbitration provision within 60 days of your termination of your healthcare services.  

If you or a loved one have suffered from neglect by health care staff, contact the Law Office of Jeffrey J. Downey for a free consultation.

Serving clients in Virginia, Maryland and the District of Columbia. Address: , 8270 Greensboro Drive, Suite 810, McLean, VA, 22101, Phone 703-564-7318. On the web at www.jeffdowney.com.

Jeffrey J. Downey, attorney
The Law Office of Jeffrey J. Downey
8270 Greensboro Drive, Suite 810
McLean, VA  22102
Representing victims of personal injury, elder neglect, abuse and exploitation
Serving clients in Virginia, Maryland and the District of Columbia
On the web at Jeffdowney.com;  
Phone 703-564-7318, 703-564-7336

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