One case I have been meaning to write about for a few months is Dickerson v. Longoria, a recent opinion that I think is important for Maryland nursing home patients and their counsel.
The ultimate issue in Dickerson is whether a family member had the authority to bind a nursing home patient by agreeing to an arbitration clause. The Maryland Court of Appeals found that the relative did not.
But the larger issue is whether Maryland law allows for enforcement of a nursing home negligence arbitration agreement. I think it is hard to argue that a waiver signed at admission, even if signed by the patient, is a knowing, intelligent, and voluntary waiver of one of our most fundamental constitutional rights: the right to a jury trial. The reality is people seeking admission to a long-term care facility or a nursing home are focusing on their immediate concerns — cost, logistics, quality of care — not legal ramifications of future potential disputes or the small print buried in a long document. The law should be protecting people from themselves because that is not a level playing field and that term is, let’s be honest, being forced down someone’s throat at what may be one of the most emotionally complex moments of their lives. Often, seniors do not have a real choice in where they go. What matters is that it is close and that there is a bed available.