More and more nursing homes are corporatizing the delivery of healthcare to increase profits. A trend for the past several years has been to insert an "arbitration clause" in their resident agreements. By signing this agreement, the resident or his/her legal guardian are relinquishing their right for any potential claim, no matter how egregious the circumstances, to be heard by a jury. The agreement strips away the people's voice and, in many circumstances, terminates a real opportunity to improve resident safety and quality of care. By signing these agreements, the nursing home directs the flow of complaints to corporate-designed dispute systems, which serve their interests to the detriment of the resident, the resident's family and the community at large.
These corporate interest "alternative dispute" systems eliminate the best judicial system in the world where the people rule and the fact finder, most often, cannot be influenced by anything other than the facts and law of the case. The checks and balances that our system of jurisprudence provides to facilitate truth and justice are not applicable in these settings. And, as history has shown, not only does our civil justice system provide the best means in the world to compensate victims of abuse and neglect, but it is arguably the best driver of quality healthcare. As the following examples show, the lives of countless seniors and many millions of dollars in future health care costs have been saved as a result of lawsuits. · A 78-year-old woman, admitted to a nursing home for short-term hip and wrist rehabilitation, died after suffering severe pressure sores, malnourishment and dehydration. As part of the settlement, the company changed its patient monitoring and care procedures in each of its 65 nursing homes. · A 72-year-old man contracted a bacterial infection from a fellow patient after undergoing knee replacement surgery; his leg lost all mobility. This lawsuit and similar cases caused health care facilities around the country to be more attentive to infection control. · A 63-year-old Alzheimer patient was strangled to death by the restraints in her bed rails while sleeping. As part of the settlement, the nursing home agreed to numerous operational reforms, while the bed rail manufacturer agreed to warn its customers about the dangers of entrapment. · A 79-year-old woman was crushed to death after a Home Depot forklift operator knocked lumber and other merchandise stacked several feet above her. After the case settled, Home Depot announced plans to change its merchandise-stacking policies. · A 79-year-old nursing home patient suffering from Alzheimer’s disease drowned in a bathtub after being left unattended. As a result of this lawsuit, the nursing home installed safety strips in bathtubs and exercised closer supervision of its elderly patients. · An 81-year-old woman died after taking the anti-arthritis drug Oraflex manufactured by Eli Lilly. As a result of this lawsuit, Lilly and its executives were held criminally responsible for mislabeling and failing to report fatal side effects and illnesses related to the drug. · An 80-year-old was legally blinded in her left eye when a twist-off aluminum cap blew off a plastic two-liter Diet 7-Up bottle and struck her in the eye. As a result of lawsuits, the company converted to using plastic pre-formed caps that greatly reduced the likelihood of caps blowing off and added a specific warning on the bottles. Pennsylvania courts seemingly recognize the value of the civil justice system's ability to influence best nursing home practices. In a victory for Pa. residents, the Pennsylvania Superior Court in Washburn v. Northern Health Facilities, Inc., et al., held that an arbitration agreement was not binding upon a plaintiff resident when his wife signed the agreement as her husband’s “designated legal representative,” because Mrs. Washburn did not have her husband’s power of attorney and had not been appointed his guardian. The Washburn Court followed another recent Pa. Superior Court decision in Taylor v. Extendicare Health Facilities, Inc., wherein the Court held that an arbitration agreement signed by the resident decedent or his or her authorized representative was not binding upon non-signatory wrongful death beneficiaries, and they cannot be compelled to arbitration. The Taylor Court also refused to severe the Survival Action from the Wrongful Death Action since the claims arising out of the same set of facts shall be consolidated. Hopefully, Pa. courts will continue this trend to limit the utilization of these heavy-handed contracts. In my opinion, any healthcare agreement attempting to limit consequences of wrongdoing presents a conflict of interest, particularly when a potential resident and his/her family members are in a vulnerable state in a desperate search for reasonable and necessary healthcare, is inappropriate. Many times the resident and/or the resident's family have no choice, based in realty, to rebuke the nursing home's efforts to enforce the signing of the arbitration agreement. The Center for Medicare Medicaid Services, acknowledging these concerns, has recently released proposed rules "to ensure that if a facility presents binding arbitration agreements to its residents that the agreements be explained to the residents and they acknowledge that they understand the agreement; the agreements be entered into voluntarily; and arbitration sessions be conducted by a neutral arbitrator in a location that is convenient to both parties." Importantly, admission to the facility could not be contingent upon the resident or the resident representative signing a binding arbitration agreement. Moreover, the agreement could not prohibit or discourage the resident or anyone else from communicating with federal, state or local health care or health-related officials, including representatives of the Office of the State Long-Term Care Ombudsman. While CMS is attempting to even the playing field between the corporate interests and the resident and resident’s family, some feel that forced arbitration agreements have no place in nursing home admissions. The American Association for Justice is currently sponsoring a petition to encourage the federal government to ban arbitration agreements in nursing home admissions. Click here for more information. While investigating the best nursing homes for your loved one, you should inquire whether the nursing home forces residents to sign arbitration agreements. If that is their policy, then your interests might be best served by researching other alternatives. Others may consider contacting your state’s Department of Aging or Ombudsman to report the nursing home’s efforts to utilize its unequal bargaining power in having the resident or member of the resident’s family sign such an agreement under duress.
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$3.77 Million in Medical Malpractice Case Against Wheeling Doctor and PA
WHEELING, WV / PITTSBURGH, PA — An Ohio County, West Virginia jury has returned a $3.77 Million verdict in a medical malpractice case against a doctor and a physician’s assistant at WVU Medicine Wheeling Hospital. Following a four-day trial, the jury found both Dr. Barry Mitchell and Physician’s Assistant Michelle Porembka negligent in their medical care of 64 year old Julie Daley when she presented with abdominal complaints at the Wheeling Hospital emergency room in June 2022. As a result of the medical care providers’ failure to timely and properly treat her condition, Daley ultimately sustained a perforated colon along with necrosis which ultimately lead to her needing to have a permanent colostomy. The jury found that the conduct of both Mitchell and Poermbka fell below the standard of care for medical care providers in their field and that their negligence proximately caused injuries and damages to Mrs. Daley. Daley was represented at trial by Geoff Brown and Tyler Smith of the Wheeling law firm of Bordas & Bordas. Following the verdict, Smith commented, “We are pleased that the jury recognized that this should not have happened to Julie Daley and that they compensated her for the life-long effects that she will have as a result of the negligence of the medical providers.” Mark Robinson and David Givens of Flaherty, Sensabaugh, and Bonasso represented the medical providers at trial. Circuit Court Judge Jason Cuomo presided over the case. Brown stated “Our practice is based upon fighting for justice for people who have been injured or wronged by others. Helping others is at the root of everything that we do and we are glad that we were able to help Julie and her family obtain a measure of justice through this case and this result.” About Bordas & Bordas Founded in 1985, Bordas & Bordas Attorneys PLLC has earned a reputation as one of the region’s premier personal injury and plaintiff litigation law firms. With offices in Wheeling and Moundsville, West Virginia; Pittsburgh, Pennsylvania; and St. Clairsville, Ohio, the firm represents clients in cases involving automobile and trucking accidents, medical malpractice, workplace injuries, nursing home negligence, product liability, wrongful death, insurance bad faith, and more. The firm operates on a contingency fee basis (clients pay only if there is a recovery) and offers free initial consultations. Rooted in its core values of experience, family, community, and results, Bordas & Bordas continues to stand as a trusted advocate for individuals and families across the Ohio Valley and beyond. Visit www.bordaslaw.com for more information.
The Pennsylvania Superior Court Analyzes the Federal Public Readiness and Emergency Preparedness Act in Denying Defendants’ Motion for Judgment on the Pleadings
The Pennsylvania Superior Court Analyzes the Federal Public Readiness and Emergency Preparedness Act in Denying Defendants’ Motion for Judgment on the Pleadings In Boyle v. Meyer, 2025 PA Super 198 (September 9, 2025), the Pennsylvania Superior Court denied a physical therapy company’s motion for judgment on the pleadings based on the immunity provisions contained in the federal Public Readiness and Emergency Preparedness Act (PREP Act). Background of the Case Plaintiff Boyle required physical therapy following open-heart surgery. To minimize the risk of contracting COVID-19, he arranged for OSPTA Home Care to provide in-home services. On November 8, 2020, physical therapist Meyer arrived without gloves, a face shield, or a proper mask — only wearing a thin, disposable surgical mask. Meyer also shook Boyle’s hand without gloves, did not wash her hands before treatment, and performed therapy as usual. Days later, OSPTA informed Boyle that Meyer had tested positive for COVID-19. Boyle soon developed symptoms, was hospitalized for ten days, and continued to suffer complications five months later. Boyle sued OSPTA and Meyer, alleging: Meyer was negligent in failing to wear proper personal protective equipment (PPE). Meyer exposed him to unreasonable risk and performed therapy despite known exposure. OSPTA failed to properly train and supervise Meyer and implement safeguards to prevent the virus’s spread. Defendants’ Motion and PREP Act Defense In response, Defendants admitted Meyer was not wearing gloves or a face shield but stated she wore a surgical mask and used hand sanitizer earlier in the day. They argued they were immune from liability under the Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d-6d, 247d-6e. Defendants asserted that they met all four requirements for immunity: Public health emergency – The COVID-19 pandemic triggered PREP Act protections. Covered persons – They qualified as both “program planners” and “qualified persons” under the Act. Covered countermeasure – Meyer’s “thin, disposable surgical mask” was a device authorized for emergency use by the FDA. Causal relationship – Meyer’s use of the mask had a causal connection to Boyle’s COVID-19 claim. The trial court denied their motion for judgment on the pleadings. Superior Court’s Analysis On appeal, the Superior Court found several factual disputes that prevented judgment for the Defendants. Specifically: It was unclear whether Meyer’s surgical mask qualified as a “covered countermeasure.” The pleadings did not conclusively establish that the Defendants were “covered persons.” Even if both were true, PREP Act immunity applies only to the use or administration of a covered countermeasure — not to its non-use. Citing Hampton v. California, 83 F.4th 754 (9th Cir. 2023), the Court noted that the PREP Act shields defendants from claims related to administering a covered measure, but not from claims alleging failure to administer one. Because Boyle’s complaint focused on the failure to use proper PPE, inadequate screening, and lack of training, his claims fell outside the scope of federal immunity. Conclusion The Superior Court concluded that the PREP Act did not preempt Boyle’s state-law negligence claims, affirming the trial court’s denial of the motion for judgment on the pleadings. The full opinion in Boyle v. Meyer, 2025 PA Super 198 (September 9, 2025), is available on the Pennsylvania Judiciary website. To learn more about legal issues surrounding immunity and negligence in Pennsylvania courts, visit our post on how the PA Superior Court reviews evidentiary challenges in medical cases.
Lead Risk Prompts Nationwide Recall of Ground Cinnamon
Lead Risk Prompts Nationwide Recall of Ground Cinnamon The U.S. Food and Drug Administration (FDA) has issued a nationwide recall of 12 ground cinnamon brands after testing revealed elevated levels of lead. Roughly 21,690 units were sold through retailers like Dollar Tree and Save-A-Lot before being pulled from shelves. Consumers are urged to immediately throw away any affected products and avoid purchasing them until further notice. See the official FDA recall notice. Why This Recall Matters Although no injuries have been reported yet, the FDA warns that prolonged consumption of contaminated cinnamon can cause lead accumulation in the body. Children are especially at risk, since lead exposure can impact neurological development. Cinnamon is often used in foods like cereals, baked goods, and snack mixes — staples in many households with kids. This makes the recall a major public health concern for families nationwide, including those in West Virginia, Ohio, and Pennsylvania. FDA’s Broader Effort This recall is part of a larger FDA initiative to monitor imported spices more closely. Several cinnamon brands have been flagged in prior alerts, and surveillance is ongoing. For example: The FDA recently added Asli brand ground cinnamon to the list of affected products after new testing revealed unsafe lead levels. Additional products may be named as investigations continue. See the expanded FDA alert. What You Should Do If you purchased ground cinnamon recently: Check your spice cabinet against the recall list. Dispose of any recalled products immediately. Do not repurchase affected brands until the FDA clears them. If you suspect your child or another family member has been exposed, consult a healthcare provider for guidance. For ongoing updates, visit the FDA’s cinnamon recall page. Protecting Consumers This recall is a reminder that product safety issues extend beyond toys, appliances, and vehicles — even everyday food staples can carry risks. Families in WV, OH, and PA should stay informed about recalls and understand their rights if a defective or dangerous product causes harm. At Bordas & Bordas, our attorneys help consumers hold corporations accountable when safety takes a backseat to profit.
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