In an effort to insulate themselves from lawsuits, nursing homes often require new residents to sign an arbitration agreement as a condition of admission. Arbitration is a home run for insurance companies. Most importantly, arbitrators tend to issue lower awards than juries. The agreements themselves often stack the deck in favor of the nursing home with respect to the choice of arbitration, the venue, damage caps, and a modified statute of limitations.
Below is a sample nursing home arbitration agreement. This was the agreement language between FutureCare and our client's deceased mother. The Maryland Court of Special Appeals recently ruled that this agreement does not bar a wrongful death action in civil court, allowing our client to avoid arbitration.Sample Arbitration Agreement
This Arbitration Agreement ("Agreement") is made on this 31st day of October 2016, by and between 1046 North Point, LLC, t/a FutureCare NorthPoint (the "Facility") and John Smith ("Resident'' and/or "Resident's Authorized Representative", hereinafter collectively the "Resident"). Resident's Authorized Representative, if any acknowledges that he is signing this Agreement as a party, both in his individual and representative capacity.
What is Arbitration?
Arbitration is generally a cost effective and time-saving method of resolving disputes without involving the courts. If in using arbitration, the disputes are heard and decided by a private individual called an arbitrator. The dispute will not be heard or decided by a judge or jury.
Agreement to Arbitrate
The Facility and the Resident agree that, pursuant to the Maryland Uniform Arbitration Act, and except as provided in the last paragraph of this Section l, any action, dispute, claim, or controversy of any kind (i.e., whether in contract or tort, statutory or common law, legal or equitable, or otherwise) now existing or hereafter arising between the parties in any way arising out of, pertaining to or in connection with or relating to:
the provision of healthcare, nursing services, and/or any other goods or services to the Resident by the Facility, its affiliates, agents, servants, employees, independent contractors agents and/or representatives; and/or
other transactions, contracts or agreements of any kind whatsoever between the Facility, its affiliates, agents, servant e1npfoyees, independent contractors agents and/or representatives and the Resident and his or her representatives; and/or
any past, present, or future incidents, omissions, acts, errors, practices, or occurrence causing injury to either party hereto whereby the other party or its affiliates, agents, servants, employees, independent contractors agents and/or representatives may be liable, in whole or in part: and/or
any survival action or wrongful death claim; and/or
any other aspect of the past, present or future relationships between the parties hereto, shall be resolved by binding arbitration (the "Arbitration") in accordance with the Maryland Uniform Arbitration Act, and not by a claim brought before the Health Care Alternative Dispute Resolution Office, a lawsuit, or other resort to court process, except to the extent that applicable state or federal law provides for judicial review of arbitration proceedings or judicial enforcement of arbitration awards.
The Arbitration shall be heard and decided by one arbitrator (the "Arbitrator"), and the Resident and the Facility expressly agree that the Arbitrator is employed to, and shall, resolve all disputes, including without limitation, any disputes about the making, validity, enforceability, scope, interpretation, voidability, unconscionability, preemption and/or waiver of this Agreement or the Admission Agreement, as well as resolve the Parties' underlying disputes as it is the Parties' intent to completely avoid involving the court system.
Notwithstanding anything in this Section I to the contrary, this Agreement regarding Arbitration shall not apply to any claim by the facility and/or its affiliates against the Resident or any representative of Resident for nonpayment of any charge for nursing home or other services, which claim may be brought in any court of competent jurisdiction, nor shall it apply to guardianship actions, actions for involuntary discharge, or actions brought pursuant to Maryland Health General Code Ann., §I 9-344.
Initiation of Arbitration: Arbitrator
An Arbitration shall be initiated by the allegedly aggrieved party by submitting to the other party a written demand for arbitration (sent in accordance with the notice provisions of this Agreement) which shall state (i) the claim asserted, (ii) the facts alleged to support the claim, (iii) the applicable statute or principle of law upon which the legal basis for the demand is premised and (iv) the remedy being sought. The Arbitration shall be heard and decided by the Arbitrator, who shall be selected by mutual agreement of the parties; provided, however, if the parties are unable to agree on the Arbitrator within thirty (30) days of the serving of the written demand of arbitration (the "Mutual Arbitrator Period"), each party shall then designate in writing to the other party one (l) arbitrator within twenty (20) days after the expiration of the Mutual Arbitrator Period (the "Arbitrator Designation Period"), and the two (2) designated arbitrators shall select a third arbitrator within twenty (20) days after the Arbitrator Designation Period, which third arbitrator (sometimes hereinafter referred to as the "Designated Arbitrator") shall be the Arbitrator for the Arbitration. In the event a party does not designate an arbitrator during the Arbitrator Designation Period, then the arbitrator designated by the other party shall select the Designated Arbitrator. In the event that the two (2) arbitrators fail to select the Designated Arbitrator within twenty (20) days after the end of the Arbitrator Designation Period, then either party shall have the right, pursuant to the Maryland Uniform Arbitration Act, to petition a court for the Appointment of the Arbitrator. Each party shall pay the costs and expenses of the arbitrator designated by such party during the Arbitrator Designation Period. The costs of the Designated Arbitrator shall be deemed an arbitration expense and shall be split equally by the parties, except where the Arbitrator determines that the apportionment of such costs is prohibited by applicable law.
Rights of Parties
The following rights and procedures shall apply in the Arbitration:
Each party shall have the right to assert any claims or defenses in the arbitration which could be raised in a court of competent jurisdiction;
Each party shall have the right to counsel of his/her or its choice;
The party that raises a claim in the Arl1itration shall bear the burden of proof with respect to the claim.
The parties agree that damages awarded, if any, in the arbitration shall be determined in accordance with the provisions of the state or federal law applicable to a comparable civil action including any statutory caps or limitations on such damages. It is further agreed that the Arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute.
Upon the appointment of the Arbitrator, the Arbitrator shall hold a conference with the parties (either by telephone or in person) for the purpose of establishing guidelines for discovery, establishing guidelines for the identification and presentation of testimony from expert witnesses, establishing deadlines for submissions to the Arbitrator and the exchange of information between the parties and confirming the time and place of the hearing. The Arbitrator shall establish a schedule for the identification of fact and expert witnesses, and during the course of discovery, the parties shall have the right to subpoena and depose any individual who is identified by the opposing party as a fact or expert witness at the arbitration, as well as the right to subpoena and depose custodians of relevant medical records. Discovery disputes shall be resolved by the arbitrator in advance of the hearing and in accordance with the Maryland Rules of Procedure. The Arbitration hearing shall take place in the State of Maryland at a place mutually agreed upon by the parties, or, if no agreement, at FutureCare's corporate offices located at 8028 Ritchie Highway, Suite 118, Pasadena, MD 21122, and shall continue on consecutive business days until completed, unless the parties and the Arbitrator agree upon a different schedule. Either party shall have the right to cause the Arbitration hearing to be stenographically recorded; if so recorded, such cost shall be split equally by the parties. Each party shall have the opportunity to submit post-hearing briefs. The cost of the Arbitration, including the costs and fees of the Arbitrator shall be borne equally by each party.
All claims based in part on the same incident, transaction, or related course of the care or service provided by the Facility to the Resident, shall be arbitrated in one proceeding. A claim shall be waived and forever barred if it arose prior to the date upon which notice of arbitration is given to the Facility or received by the Resident, and is not presented in the Arbitration proceeding. Nothing in this Agreement shall serve to extend any applicable statute of limitations.
The Arbitrator shall have the authority to award such relief as may be available in a court of law, subject to the limitations on damages set forth in Section IV of this Agreement. The decision of the Arbitrator shall be final and binding on the parties except to the extent that applicable state or federal law provides for judicial review of arbitration proceedings or judicial enforcement of arbitration awards.
Notification by Parties
Any notices to be given under this agreement by either party to the other shall be effected by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Any notice to the Facility or FutureCare shall be mailed to President, FutureCare, 8028 Ritchie Highway, Suite 210B, Pasadena, Maryland 21122. Any notice to Resident shall be mailed to the Resident's last address on file with the Facility. Each party may change his, her, or its address by written notice to the other party. Mailed notices shall be deemed communicated as of three (3) days after mailing.
Modification of Agreement
This Agreement cannot be modified except in writing signed by both Resident and the Facility and supersedes any and all other agreements, either oral or in writing, express or implied, between the Resident and the Facility relating to dispute resolution.
Motion to Compel Arbitration
If any party is required to file a lawsuit to compel arbitration pursuant to this Agreement, or defend against a lawsuit filed in court contrary to this Agreement's mandatory arbitration provision, such party, if successful, shall be entitled to recover such party's reasonable costs and attorneys' fees incurred in such an action, including costs and attorneys' fees incurred in any appeal. The Resident and Facility hereby expressly agree that judicial review as to a motion to compel arbitration or similar petition shall be limited to the determination of whether a valid agreement to arbitrate exists (i.e., whether the instant Agreement is the product of a legally cognizable offer, acceptance and consideration). All other disputes as to the making execution, validity, enforceability, voidability, unconscionabillty, severability, scope, interpretation, preemption, waiver, or any other defense to the enforceability of this Agreement or the Admission Agreement, shall be determined solely by the Arbitrator.
Intention of Parties
It is the intention of the parties to this Agreement that this Agreement shall inure to the direct benefit of and bind the parties and their respective personal representatives, heirs, successors and assigns, including the agents, employees, affiliates, and servants of the Facility, any management company associated with or contracting with the Facility, and all persons whose claims derive through, or on behalf of, the Resident, including those of any parent spouse, child, guardian, executor, administrator, legal representative, or heir of the Resident, as well as any survivor or wrongful death claim, or any person who previously assumed responsibility for providing Resident with necessary services such as food, shelter, clothing or medicine, and any person who executed this Agreement or the Admission Agreement. The parties agree that except as may be required by law, her neither party, nor the Arbitrator, may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the parties.
The parties understand and agree that bv entering in to this Agreement they are each relinquishing and waiving their right under applicable law to have any claim decided in a court of law before a judge and/or jury.
If any term, provision, subparagraph, paragraph or section of this Agreement is adjudged by any court to be void or unenforceable in whole or in part, this adjudication shall not affect the validity of the remainder of this Agreement, including any other term, provision, subparagraph, paragraph or section. To the extent unenforceable, the Arbitrator may sever any term or portion of this Agreement, and such severance shall not affect the validity of the remainder of this Agreement. The provisions of the Maryland Arbitration Act will control and supplement the Agreement unless expressly contrary to the terms of the Agreement.
Rights of the Resident
The Resident acknowledges and understands that (1) the Resident has received a copy of this agreement and has had an opportunity to read it and ask questions about it before signing below; (2) the Resident has the right to seek legal counsel concerning this Agreement; (3) if the Resident does not accept this Agreement, he or she can still move into and receive services from this Facility; (4) this Agreement may be rescinded by written notice to the Facility from the Resident within 30 days of the signing hereof by the Resident; (5) if not so rescinded within 30 days of the signing hereof by the Resident, this Agreement shall remain in effect for all care and services rendered by the Facility, its agents, servants, employees or contractors; and (6) by signing this Agreement, the Resident and the Facility are giving up and waiving the right to have Disputes decided in a court of law before a judge and/or jury.
In Witness thereof, the parties have signed and sealed this Agreement as of the day and Year first above written.
|Name: _John Smith_______________________|
|Resident's Authorized Representative:|
(in individual and representative capacity)
|1046 North Point, LLC|
t/a FutureCare NorthPoint
If someone you love has suffered a serious injury or died as the result of nursing home abuse or nursing home abuse neglect, call our Maryland nursing home attorneys at 800-553-8082 for a free Internet consultation to discuss a potential elder neglect lawsuit. There are no fees or expenses unless a recovery is earned for you.Nursing Home Lawsuits in Maryland: Samples and Explanation of Maryland Law