South Carolina Nursing Home Blog : South Carolina Nursing Home Lawyer & Attorney : Poliakoff & Associates Law Firm : Elderly Care, Senior Care

Boston Herald had a great article about a family's attempt to learn the truth behind a document a resident allegedly signed while suffering from delusions and memory loss.  They hope to shed light on what she called an “outrageous and deceptive” practice.  Having demented residents sign their right to a jury trial away.  This is a tragic story that I hear all the time.  Resident clearly gets hurt by negligence of facility.  The facility, instead of taking responsibility, tortures the family by ridiculous legal machinations such as arbitration, health courts, malpractice tribunals.  This family has waited years for closure.

John J. Donahue died after suffering injuries at a Brockton nursing home in 2005.  Donahue, a paralyzed retired railroad engineer, spent the final 46 days of his life being shuffled between nursing homes and hospitals following an eye injury he suffered at Embassy House, Hoey said. On Sept. 5, 2005, Donahue’s left eye was gouged by a metal safety hook on a machine an employee was using to move him from his bed. Two people were supposed to operate the machine, called a Hoyer lift, per facility policy, according to a state investigation on the incident. The state Department of Public Health investigated Sept. 21, 2005, and found the allegation of neglect to be valid. The certified nursing assistant who operated the Hoyer machine alone was fired.

He was taken to the hospital more than 15 hours later, where his eye was removed. Donahue died weeks later of sepsis causing blood clots and organ failure. Hoey said experts will testify at trial that the eye trauma placed Donahue in a compromised state, which made him more susceptible to disease and infections.

Two years later, Owens filed a lawsuit alleging the nursing home’s negligence led to her father’s health decline, and in turn, his death.  The nursing home claimed that Donahue had signed an arbitration agreement in 2003, when he was 91, waiving his right to a trial if he was injured or killed.

Arbitration agreements are becoming more common at nursing homes and they are costly and time-consuming to contest, said Donahue’s attorney, David Hoey of North Reading.  Hoey said he fought the alleged agreement for two years, until the Court held the agreement was void based on testimony and records from staff at Embassy House Skilled Nursing and Rehabilitation Center in Brockton.

In December 2003 - the month Donahue signed the agreement - staff noted that Donahue made “confused, depressed (and) delusional statements” and showed “delusional ideation,” according to the February 2009 Plymouth Superior Court order signed by Judge Charles J. Hely. Hely ruled that Donahue was “unable to act in a reasonable manner” on the arbitration contract and that Embassy House “had reason to know of this significantly impaired condition.”

On Feb. 9, a Superior Court medical tribunal cleared the case to go forward to trial.  In Massachusetts, medical malpractice lawsuits must be heard by a tribunal before going to trial.

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McKnight's had an article about a decision in Colorado regarding the enforcement of an arbitration clause in a nursing home case.  The Colorado court ruled that a healthcare proxy does not have the authority to sign an arbitration agreement on behalf of a nursing home resident.  Under Colorado law, a healthcare proxy is only empowered to make medical decisions on behalf of another, including “provision, withholding, or withdrawal of any health care, medical procedure, including artificially provided nourishment and hydration, surgery, cardiopulmonary resuscitation, or service to maintain, diagnose, treat, or provide for a patient's physical or mental health or personal care,” the Bureau of National Affairs reported.

In the case of Lujan v. Life Care Centers of America, Colorado, Alvin Lujan signed an arbitration agreement, waiving jury trial rights, when admitting his mother, Estella Lujan, to the Life Care Centers of America nursing home. She died three days later, and a wrongful death claim was filed against the facility. Life Care Centers argued that admission to a nursing home is a medical decision and, therefore, the Colorado law applies.  But the Colorado Court of Appeals determined that the signing of an arbitration agreement does not fall under the specific definition of the authorities given to a healthcare proxy. As a result, the Lujan family had the right to sue the facility.

In October, the Nebraska Supreme Court arrived at a similar decision regarding the roll of patient surrogates
 

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Attached is an opinion from Erie County, Pa.  The plaintiffs were represented by Christina Nacopoulos, Esq. She did a great job for her clients.  The Court rejected Defendants' efforts to remove negligence per se, corporate and punitive claims.   The Court denied arbitration and  refused to submit the matter to arbitration ruling that the decedent’s family was not a party to any arbitration agreement and thus would not be bound by it.   The Court also denied Defendants' outrageous request for sanctions.  Defendants were attempting to sanction the family for trying to assert their consitutional right to a jury trial by challenging the manadatory arbitration clause hidden in the admissions contract.

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McKnight's had an article about the recent Nebraska Supreme Court decision denying the nursing home's motion to compel arbitration.   See Order here.  This is a big victory for residents and their families.

"Beverly Hallmark knew of Manda’s limited ability to understand these documents, or she would not have been asking her son Frank to sign them for her. Nothing in the record suggests that a reasonable person should have expected an arbitration agreement to be included with admission documents for a nursing home. So Beverly Hallmark was not justified in relying solely on Manda’s authorization of Frank to sign admission papers as apparent authority to bind her to an arbitration agreement."

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The Daily Record had an article about attorney F. Paul Bland, who represents a neglected nursing home resident, urging Maryland’s highest court to let her take her fraud claims against a Baltimore nursing home to trial, rather than to arbitration as the health care facility wants. Addison, who suffered a stroke in September 2005, says the nursing home delayed filing her Medicaid application so it could continue charging her a higher daily rate for several months.  The delay eventually cost her more than $70,000. She also alleged that a nursing home employee put her in touch with people who tried to buy her home for far less than its value.

“Ms. Addison should be permitted to have this trial go forward while she is alive,” he told the Court of Appeals on behalf of his client, Beulah Addison.  A circuit court judge ruled in 2007 that Addison could not be forced to arbitrate her claims, but his decision was reversed last year by the Court of Special Appeals.

Lochearn Nursing Home LLC’s lawyer, Melvin Sykes, defended that action. Bland, though, argued that the Court of Special Appeals should never have heard the case, because the judge’s ruling was not subject to appeal under Maryland’s laws of civil procedure.

The dispute has spurred interest from groups who oppose arbitration provisions in consumer contracts, saying they compel unwary purchasers into forfeiting their right to their day in court — a “sacrifice [that] falls particularly hard on economically vulnerable populations,” according to the Baltimore-based Public Justice Center.

“Mandatory pre-dispute arbitration agreements that were once confined to sophisticated commercial entities are now routinely imposed via form contracts on consumers and employees who often have little bargaining power and few alternatives,” C. Matthew Hill wrote in the Public Justice Center’s brief to the Court of Appeals. Joining the brief were the Maryland Employment Lawyers Association, Maryland Consumer Rights Coalition Inc. and the National Association of Consumer Advocates.

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National Senior Citizen Law Center does a great job analyzing and sharing information about long term care facilities.  Recently, they did a study on nursing home admission agreements, along with an accompanying consumer guide. The link to the material is available here.   The study looks at unfair admission contracts that have arbitration clauses, personal guarantees, and other unfair trade practices.  Everyone who plans on researching options for their loved ones should get to know this website.
 

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 Below are excerpts from an article regarding arbitration clauses in nursing home contracts provided by Dollar, Burns & Becker, L.C.  Their firm website is here. 

Arbitration clauses in nursing home contracts have come under closer scrutiny in recent years. At the federal level, there has been a push in Congress to pass the Fairness in Nursing Home Arbitration Act, which would make any pre-dispute arbitration agreement between nursing homes and residents invalid and unenforceable.

At the state level, several state courts also have faced the issue of the enforceability of arbitration clauses in long-term care facility contracts. In Illinois, the appellate court upheld a ruling that the Illinois Nursing Home Care Act prevented nursing home residents from waiving their rights to a jury trial. The nursing home argued that the appellate court's ruling contravenes the Federal Arbitration Act (FAA).

The Missouri Supreme Court ruled in Lawrence v Beverly Manor (273 S.W.3d 525) that arbitration agreements in nursing home contracts do not prevent the heirs or successors to the nursing home resident from bringing a wrongful death action in court against the nursing home.

In Lawrence, the daughter of a resident signed the nursing home contract with the arbitration agreement on behalf of her mother. Her mother died in the nursing home shortly after moving in. When the wrongful death action was brought against Beverly Manor, it sought to enforce the arbitration agreement against the daughter and son of the resident. The Missouri court refused to do so, holding that the arbitration agreement was not binding against the family in a wrongful death case.

 The Missouri Supreme Court ruled that a wrongful death action is a separate cause of action. The court reasoned that the arbitration agreement did not bind the daughter and son in Lawrence because the deceased mother could not have brought a wrongful death lawsuit against the nursing home had she lived.

Thus, under Missouri state law, arbitration agreements signed by nursing home residents -- or by someone acting on their behalf, such as a son or daughter -- are not enforceable against anyone seeking to bring a wrongful death action in state court.

The Lawrence decision did not invalidate arbitration agreements in nursing home contracts.  The Lawrence decision, however, may be used in future cases to attempt to invalidate arbitration agreements in nursing home contracts altogether. Special Judge Glenn A. Norton wrote that he believed any agreements between nursing homes and residents requiring arbitration for personal injury were unconscionable and should be unenforceable.

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McKnight's had another article on the Fairness in Nursing Home Arbitration Act.  This bill would prevent nursing homes from using pre-dispute arbitration agreements as a way to take away residents' rights to a jury trial. The bill is supported by both Republicans and Democrats and should be able to pass without much difficulty. 

Sens. Mel Martinez (R-FL) and Herb Kohl (D-WI) reintroduced their measure in an effort to "restore the original intent of arbitration laws [and] ensure that families will not have to choose between quality care and forgoing their rights within the judicial system."    The version of the bill introduced in the last session of Congress was approved by the Senate Judiciary Committee, but never came to a full floor vote. The bill does not prohibit the use of all arbitration agreements by nursing homes, only pre-dispute agreements.   Arbitration agreements could still be used after a dispute arises, though the bill would make them a voluntary matter.
 

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Most Vulnerable Americans Protected By Fairness in Nursing Home Arbitration Act

Bipartisan bill will ensure nursing home corporations don’t eliminate seniors’ legal rights

The most vulnerable Americans and their families will no longer be forced to give up their legal rights and sign one-sided mandatory binding arbitration clauses under new legislation introduced in the U.S. Senate.

The bipartisan Fairness in Nursing Home Arbitration Act of 2009, introduced by Sen. Mel Martinez (R-FL) and Sen. Herb Kohl (D-WI), will prevent nursing homes from deliberately hiding clauses within the fine print of contracts that force seniors to surrender their right to trial by jury and enter an unfair and one-sided mandatory binding arbitration process. The bill was introduced in the U.S. House last week by Rep. Linda Sanchez (D-CA).

“The Fairness in Nursing Home Arbitration Act will make sure negligent nursing home corporations can be held accountable by our most vulnerable citizens,” said American Association for Justice President Les Weisbrod. “This bill will prevent nursing home corporations from unfairly preying on seniors and stripping away their legal rights. Arbitration should only be voluntarily, not hidden away in the fine print of contracts during our seniors’ greatest time of need.”

The Fairness in Nursing Home Arbitration Act of 2009 will help people like Minnesota resident Dean Cole, who received unconscionable care from a negligent nursing corporation. Suffering from dementia, Dean needed help eating meals every day; but during his 22 day residency, Dean lost 20.6 pounds without his physician or wife ever being notified. After being admitted to the hospital, he was found to be severely dehydrated, with a water deficit near 10 liters. Dean died less than a month later. His family sought justice by bringing a suit against the nursing home for negligent care, but learned they would be forced into one-sided mandatory binding arbitration on the corporation’s own terms and denied the right to trial by jury. The case is still pending.

For more information on mandatory binding arbitration, visit: http://www.justice.org/newsroom.

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