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Wrongful Death Arbitration: Futurecare v. Peeler 2
The Baltimore Medical Malpractice Lawyer Blog examines issues in Maryland medical malpractice cases. In this post, Part 2, I discuss the issue of whether a resident’s arbitration agreement with a nursing home covers a wrongful death claim. In Part 1, I addressed the appealability of an order denying a petition to compel arbitration. The case is the Court of Special Appeals reported opinion in Futurecare Northpoint, LLC. v. Peeler, 229 Md. App. 108 (2016).
Factual Background
The decedent became a resident of a skilled nursing facility. At admission, she signed a written agreement to resolve certain disputes by binding arbitration under the Maryland Uniform Arbitration Act (MUAA). (Op. at 1-2). The scope of the agreement specifically included wrongful death claims. It also stated that it bound persons who could make wrongful death claims. (Id. at 2).
The decedent received medical care in the facility and then ultimately died. Afterward, the decedent’s daughter brought a lawsuit for wrongful death in the Circuit Court for Baltimore County. (Id. at 3).
Later the same month, the facility filed a separate action with a petition for an order to arbitrate under CJP 3-207. The daughter opposed the petition because she had not signed an arbitration agreement. The court consolidated the cases but maintained separate files. (Id. at 4).
The trial judge denied the petition to arbitrate, stating that the cases were no longer consolidated and specifically that the order was a final, appealable order under Rule 2-602(b). The facility appealed and also filed a motion to stay the wrongful death case pending the appeal. The trial judge then granted the motion to stay. (Id. at 5).
Court of Special Appeals on Arbitration of Wrongful Death Claims
First, the Court of Special Appeals raised on its own initiative whether the facility has a right to appeal from a judgment in an independent case, as opposed to a motion in the wrongful death case. (Id. at 1). The trial court’s order fully adjudicated the only claim in that separate action and terminated the case. Accordingly, the CSA held that the facility had the right to appeal from the final judgment in an individual action. (Id. at 11-12).
The CSA then turned to the wrongful death issue. Both parties agreed that a survival claim was subject to arbitration. Still, they asserted that wrongful death arbitration was a first for the Maryland appellate courts. (Id. at 1, 16-17).
A wrongful death claim is separate, distinct, and independent from a survival claim, even when they both arise out of the same tortious act. The wrongful death statute created a new cause of action. (Id. at 17).
Statute
The wrongful death statute identifies who has claims. The claims belong to them, and the claimants do not bring an action in a derivative or representative capacity. (Id. at 18). Accordingly, the decedent never owned the wrongful death claim and had no power to bind the owner of the claim to arbitrate. (Id. at 18).
The Maryland wrongful death statute requires that the death result from an act that would have entitled the decedent to bring an action if death had not occurred. CJP 3-902(e). The statute, however, does not require the wrongful death plaintiff to pursue the claim only in the forum in which the decedent would have been able to assert her claim if she had survived. The statute did not give the decedent the authority to waive the wrongful death plaintiff’s right to proceed in court. (Id. at 39).
Accordingly, the CSA affirmed the judgment of no arbitration. (Id.).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Arbitration of Wrongful Death Claims
This opinion is a vital arbitration decision. It will ensure that wrongful death claimants do not have to arbitrate their cases in Maryland based on arbitration agreements entered into by the decedent. One of the most important principles in interpreting arbitration agreements is that they should be voluntary. This decision recognizes that wrongful death claimants who had no dealings with the defendant did not voluntarily agree to arbitrate their claims. This ruling sets a precedent for future cases involving similar circumstances.
This case grew out of a larger issue: the development of arbitration agreements in medical care settings. These insertions are happening most in nursing homes, as this case involved. The voluntariness requirement demands scrutiny of these arbitration clauses to ensure that the contracts prominently disclose them and clearly describe the rights that the person is waiving. The larger issue is the ethical and legal implications of using arbitration clauses in contracts with individuals who may not have the cognitive abilities to understand what they are signing fully.
Given that nursing home residents may not have the cognitive abilities to understand what they are signing, arbitration clauses in these agreements are very troubling. Hopefully, courts will give such clauses the scrutiny that they deserve. Fortunately, hospitals and doctor offices are not extensively using arbitration clauses.
Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.