Feb. 14—Shortly after the Gardens at Scranton admitted Rosa Munchak's husband in November 2020, an admissions counselor ushered her into an office to sign off on dozens of papers.

Emotional and stressed, she blindly penned her signature without reading any, including a binding arbitration agreement mandating all claims against the nursing home must go before an arbitrator, not a jury.

Two years later, that decision could derail a lawsuit she filed that blames the facility for a bone-deep bedsore becoming so infected it killed her husband, Myron.

Such arbitration agreements are common, and controversial.

Proponents say arbitration reduces the number of lawsuits filed and is more efficient, resolving disputes faster.

"Litigation can take years," said Julie Bargnesi, a Buffalo, New York attorney who represents nursing homes. "That does not benefit the resident, especially when you are dealing with an elderly person."

Attorneys who represent plaintiffs say the agreements rarely are in their clients' best interest. They often result in lower verdicts because decisions are left to one person, often a retired judge or attorney, who tends to be less sympathetic than a jury, they say.

"You are going before a retired judge who has been doing these for years and has always seen a case that was worse than the one they are looking at," said Munchak's attorney, Erica Wilson of Bala Cynwyd. "The arbitrator is not going to think it's as big of a deal as a jury that is hearing about nursing home negligence for the first time."

Critics also say the agreements often contain other provisions that adversely affect plaintiffs, including that they pay half the arbitrator's fees, win or lose, which can be hundreds or thousands of dollars. In a jury trial, plaintiffs pay a one-time fee to file the suit. Attorney's fees are typically a percentage of the verdict and the plaintiffs pay nothing if they lose.

The hearings are also held in private, shielding nursing homes from the public scrutiny of a lawsuit and trial. The verdict, which is binding and cannot be appealed, is also confidential.

"Nursing homes have a vested interest in keeping a case in arbitration and out of court," said Moosic attorney Sean McDonough, who represents several clients in lawsuits against nursing homes. "They don't want a jury of their peers to look behind the curtain."

McDonough recently negotiated an $875,000 settlement of a lawsuit Francis Dirienzo filed against Mountain View Care and Rehabilitation Center in Scranton for injuries her late mother, Claire Dirienzo, suffered Jan. 21, 2019. An aide abruptly jerked her wheelchair backwards, causing her to fall. McDonough said there was no arbitration agreement in that case.

Under federal law, nursing homes cannot deny admission if someone refuses to sign the arbitration agreement. There also is a required 30-day window to withdraw consent if it is signed.

The regulation is meant to protect consumers. Critics say people often do not understand the ramifications of what they're signing and, amid such an emotional time, may not realize they signed the agreement as it can be tucked deep within the admissions package documents.

"All most people are concerned about is getting their parent into a facility that can care for them," said Sarah Rooney, an attorney with the American Association for Justice, a Washington D.C.—based trial lawyers group that advocates for plaintiffs' rights. "They don't understand what arbitration is and what they are giving up. They only realize what they signed when something bad happens."

Bargnesi disputes allegations that nursing homes try to slip the documents in unnoticed. She noted the agreements are a separate document from all other admissions paperwork. She said the facilities she deals with ensure admissions counselors explain the document and allow families to take it home to discuss with a lawyer before signing.

That's not what happened to the Munchaks, her attorneys say.

Munchak filed suit in September in Lackawanna County Court seeking damages for the deplorable care she says her 95-year-old husband received for a serious bedsore he developed before his Jan. 27, 2021, death.

The nursing home's medical director said he died from respiratory failure. Lackawanna County Coroner Tim Rowland, who reviewed his case at Rosa Munchak's request, changed the cause to sepsis caused by the infected bed sore.

The nursing home filed a motion to dismiss the case and send it to arbitration.

At a recent hearing before Judge James Gibbons, Matthew Butler, of Scranton, the nursing home's attorney, argued Rosa Munchak voluntarily signed the agreement. The document contains a section in bold letters that states she was not required to sign it as a condition of admission, he said.

Attorney Daniel Klaproth, another of Munchak's attorneys, argued the agreement is not valid because the nursing home did not discuss the document with her to ensure she understood it. He noted English is a second language to Munchak, a Philippines native.

"She described it as a rushed process where papers were thrown in front of her and she was instructed to sign," Klaproth said, adding the counselor told her the paperwork "needed to be signed for husband to be admitted."

Gibbons held his ruling in abeyance, saying he may wish to take testimony from Munchak and the admissions counselor about what transpired.

Munchak declined to comment on her case. Wilson acknowledges she faces an uphill battle to void the agreement.

"The problem is federal law is very firm," Wilson said. "Arbitration is the same as any other contract."

Consumer advocates continue to lobby for legislation to ban mandatory arbitration agreements. There has been some success, Rooney said, noting recent laws that bar agreements relating to sexual harassment claims.

That needs to extend to nursing homes, she said, and until then, consumers must carefully review the terms of the agreements before signing.

"You have the right to refuse to sign it," Rooney said.

Contact the writer:

tbesecker@timesshamrock.com;

570-348-9137;

@tmbeseckerTT on Twitter.