Attorneys are slated to argue this month that a nursing home in Massachusetts should not be able to force arbitration in a lawsuit over the death of a 100-year-old woman allegedly killed by her 97-year-old roommate.
The decedent’s son argues he did not have the legal authority to forfeit her right to remedy through the courts when he signed his name arbitration agreement stuffed into the thick stack of nursing home admissions paperwork.
He now says the roommate, a dementia sufferer who reportedly strangled his mother, had a history of problems and the facility should not have allowed her to live with another resident.
This issue of forced arbitration is a means by which nursing homes essentially toss away the keys to the courthouse. The contract they make new residents – or their representatives – sign contains a clause that states if there is a dispute regarding care – even one that results in serious injury or death – the resident agrees to resolve it before an arbitrator, rather than in court.
There are a number of problems with this approach, at least from the victims’/survivors’ perspective.
To start, these proceedings are not public. This disadvantages plaintiffs in more than one way. First, it strips the nursing home of the compelling factor of public scrutiny. They are less likely to enter a favorable settlement when they know that decision won’t be scrutinized by the public. Secondly, it takes away from victims the benefit of information that might have been gleaned from previous public trials, either against the same defendant or against another in similar circumstances.
Beyond that, cases that don’t go to court don’t necessarily need to follow – and won’t set – legal precedent. That means there are fewer checks and balances in the process. Arbitrators, whose rulings are binding, make decisions on what they perceive to be fair, rather than what the law directs. And some of these arbitrators receive regular work with individual nursing homes or nursing home corporations. This inevitably skews the fairness of the proceeding.
More often than not, arbitrators decide cases on terms more favorable to the nursing homes. Even if the victims “win,” their damage awards are likely to be far less substantial.
These are just some of the reasons why it behooves victims of nursing home abuse and neglect or their surviving relatives to challenge the arbitration agreement. And increasingly, this is happening on highly technical grounds that challenge the validity of certain clauses.
In the Massachusetts case, the son signed his mother’s arbitration agreement on her behalf when she was admitted. But while he was designated as her health care proxy, he lacked the authority to bind his mother into arbitration. Initially, in 2010 a court barred him from filing his wrongful death lawsuit because he’d signed this agreement. However, in 2014, another judge ruled in favor of the son. Now, the case is going to trial.
Nursing home arbitration agreements have come under withering criticism in recent years, and the federal government is weighing measures that would regulate the way nursing homes present arbitration agreements when residents are admitted. As some lawmakers have noted, no one should be forced to accept a denial of justice as the price for receiving the care they deserve.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract? Feb. 21, 2016, By Michael Corkery and Jessica Silver-Greenberg, The New York Times Dealbook
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