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

To go along with Ray's earlier post, I thought I'd add this -

Today, the Senate Judiciary Committee and the Senate Special Committee on Aging is hearing arguments about the fairness of arbitration clauses in nursing home admission documents.  I must give credit to  Kia Franklin at TortDeform, although I knew this was coming up soon, I was perusing around on the blogs this afternoon when I stumbled across it.  Check out Franklin's blog post for a couple more links, and stay tuned for further developments.

I'll just say, in my opinion, Its about time.  We'll see how it all pans out.

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Dave Johnson wrote on the Huffington Post on June 17, 2008 the following article about how arbitration screws consumers and victims of corporate malfeasance.

Does your credit card or bank loan agreement have an "arbitration clause?" More and more consumer-oriented contracts and "agreements" have clauses specifying that disputes must go to arbitration rather than our civil justice system. The justification for this is that arbitration saves the time and expense of working within our legal system. But here's the thing: the corporations choose the arbitrators and every arbitrator knows they will never, ever, ever, ever (ever) get another job if they rule against the corporations. Never.  And guess what: 98.8% of arbitrations end up in favor of the corporations. This is not a surprise.

The Progressive States Network's newsletter has a story about this today, Arbitration:"Set up to squeeze small sums of money out of desperately poor people".

The headline above is a quote from former West Virginia Supreme Court Justice Richard Neely, describing what his role was as an arbitrator at the National Arbitration Forum (NAF), a for-profit company hired to enforce mandatory arbitration clauses for credit card consumer loans. "NAF is nothing more than an arm of the collection industry hiding behind a veneer of impartiality," says Richard Neely.

In a devastating expose by BusinessWeek, Neely and other former arbitrators describe an arbitration system stacked completely against consumers -- a system where creditors win 99.8% of all disputes involving companies ranging from Bank of America to Sears to Citgroup. Arbitration clauses buried in the fine print of credit card offers means consumers lose the right to have disputes decided in an independent court and instead are forced into corporation-selected arbitration firms.

The BusinessWeek story mentioned in the Progressive States Network story is titled, Banks vs. Consumers (Guess Who Wins).

This story about credit card companies taking unfair advantage of consumers is one more attack on citizen rights to access our own legal system (one more of so many attacks). Think about what is happening here. First the big corporations fought against "regulations" which are the rules that We, the People set up requiring safe workplaces or environmental standards, or products that do not injure people, etc. Then when fewer regulations of course resulted in worker or consumer injuries or toxic spills or other harms the inured parties filed more lawsuits asking the companies to make good. So in response to these lawsuits the corporate-financed "tort reform" movement came along, working to limit the ability of citizens to be compensated for the results of corporate bad behavior. The result has been fewer regulations preventing harms and more restrictions on citizen access to courts where we can seek damages after we are harmed.

I didn't even bring up the corporate-conservative movement efforts to install their own business-friendly judges in the courts.

But even those erosions of our access to justice has not been enough for the greedy corporations. Now there is arbitration: clauses that show up in contracts and agreements that remove your ability to take a dispute to the courts at all! And the judges in these courts are dependent on the corporations for their livelihood!

Deregulation, tort reform and now arbitration that is rigged against the consumer. Drip, drip, drip. One after another the big corporations are eroding the rights of citizens.

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Mother Jones had an interesting article about Ken Connor, the conservative Christian Republican who testified in support of a bill that would ban the use of mandatory binding arbitration clauses in nursing home contracts. Most nursing homes today, as a condition of admission, force vulnerable elderly people to waive their right to a jury trial. Instead, they must take any complaints about neglect or abuse to a private arbitrator, chosen and paid by the nursing home, in secret proceedings where awards are much lower. The arbitration agreements are often buried in a stack of complicated paperwork, where in some cases, they have been signed by blind people and those suffering from Alzheimer's.

The nursing home arbitration bill should pass overwhelmingly. That's why Republicans really, really don't want to vote for the nursing home bill, and one reason Connor's advocacy is making them squirm.   Connor sues nursing homes for a living. Just last month, Connor won a $2 million verdict against Sunrise Senior Living in California for failing to prevent and care for an elderly woman's fatal bedsores. . As such, Republicans would love to dismiss Connor as just another greedy trial lawyer. But Connor's religious-right bona fides simply make that impossible.

For three years, Connor served as the president of the Family Research Council, a leading social conservative outfit, and became a rock star among the GOP’s evangelical wing when he went to work in 2004 for then-Governor Jeb Bush to defend a Florida law that would have prevented doctors from removing Terri Schiavo's feeding tube. For Republican legislators, Connor has moral authority. He also gives money to many of them, so Republicans have to tolerate him, even as he forces them into a corner where they have to chose between devotion to industry and devotion to God and life.

While the GOP views trial lawyers as its mortal enemies, Connor doesn't see any contradiction between his profession and role as family values crusader. Instead, he sees his lawsuits against nursing homes as an extension of the work he did in the Schiavo case. "Removing the feeding tube, letting Teri Schiavo starve to death," he said in an interview, "I see this all the time with the elderly." Connor believes that the frail elderly are second only to the unborn in their suffering due to what he sees as a prevailing "quality of life" mindset, as opposed to one focused on the sanctity of life. He says he's witnessed bioethicists in Florida argue that if an elderly person suffers from dementia, there would be nothing wrong with hastening his or her demise. "If you call yourself a Christian, you have an obligation to fight for social justice," he says, noting that, "It's much easier to make the case for the elderly than for the unborn." 

He testified about some of his experiences with nursing homes: "All too often, the story is the same: avoidable pressure ulcers (bed sores) penetrating to the bone; wounds with dirty bandages that are infected and foul smelling; patients languishing in urine and feces for hours on end; hollow-eyed residents suffering from avoidable malnutrition, unable to ask for help because their tongues are parched and swollen from preventable dehydration; dirty catheters clogged with crystalline sediment and yellow-green urine in the bag."

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Kaisernetwork.org has an article referencing a recent Wall St. Journal article showing how the nursing home industry is using mandatory arbitration to avoid compensating victims of abuse and neglect.  Below is an excerpt from the article:  

Nursing home residents and their families increasingly are "giving up their right to sue over disputes about care, including those involving death, as the homes write binding arbitration into their standard contracts," the Wall Street Journal reports.  According to the Journal, "Nursing homes have been among the biggest converts to the practice since a wave of big jury awards in the late 1990s."

The practice has "profound implications" on the nursing home industry, according to the Journal. An industry study released last year found that the average cost of settling cases has declined for nursing homes.

Consumer advocates and plaintiffs' lawyers have criticized the arbitration systems for nursing homes, saying that people too often do not understand whether the arbitration clauses are mandatory or that they are waiving their right to sue.  Sens. Mel Martinez (R-Fla.) and Herb Kohl (D-Wis.) introduced legislation that would prohibit nursing homes from requiring patients to sign an arbitration agreement as a term of service. Martinez said, "It is an unfair practice given the unequal bargaining position between someone desperate to find a place for their loved ones and a large corporate entity like a nursing home."

The American Arbitration Association, which is the largest arbitration provider in the nation, generally refuses to handle cases of nursing home arbitration and opposes arbitration requirements in nursing home claims. The American Health Lawyers Association has a similar stance, and other arbitration groups said they only accept the cases when the agreements are in compliance with law. Eric Tuchmann, general counsel for the American Arbitration Association, said that some patients "really are not in an appropriate state of mind to evaluate an agreement like an arbitration clause."

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The Denverchannell.com has an article about Colorado lawmakers prohibiting insurance companies and nursing homes from coercing residents to waive their right to a jury trial in exchange for recieving health care.  Excerpts are below:

Rep. Cheri Jahn believes more and more nursing homes are taking advantage of elderly patients and their families by including binding arbitration clauses in their contracts, and she is sponsoring legislation to prohibit the clauses.   The arbitration clauses mean that no matter how egregious the treatment, the patient can't file suit in public court to settle a dispute, Jahn said. The patient can only negotiate behind private doors with an arbitrator chosen by the nursing home, she said.

Jahn said she is drafting a late bill to ban binding arbitration agreements in long-term care contracts.   The Colorado Health Care Association, a trade organization representing the state's nursing homes, is opposed to the bill.

It takes tremendous courage for Rep. Jahn to propose this legislation since she will now be a target for the insurance groups and lobbyists for the nursing home industry.  She is my hero of the week!

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The Tennessean has a great editorial about the legislation that will protect nursing homes who abuse and neglect residents.  Below is a summary of the editorial.

Nursing home operators are begging the General Assembly to grant them special protections from lawsuits that might be filed by residents who are seriously wronged under their care.  What the owners want is a law that would allow nursing homes to force residents to waive their constitutional right to a jury trial and sign arbitration agreements as a prerequisite for being admitted, and they want caps on how much money a jury could award to a resident in a case against the nursing home.

This effort by the nursing home industry takes a lot of nerve. The state suspended admissions at 22 nursing homes in 2007, which was twice as many as in the previous year and three times the amount in 2005. Hundreds of residents were displaced last year because of serious health and safety violations that caused those homes to lose federal funds. Yet in this environment, the nursing home industry wants special protection from lawsuits. 

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The Kansas City Star has an article about a study from the National Senior Citizens Law Center discussing clauses in nursing home agreements that violate the law.  Some admission agreements skirt state and federal laws, misleading consumers about the care they can expect and inducing them to sign away critical consumer protections.  Advocates for the elderly said the study raised serious questions about how some nursing homes operate.

The National Senior Citizens Law Center, a Washington-based nonprofit legal advocacy group for seniors and elder-care lawyers, reviewed 175 admission agreements voluntarily provided by nursing homes. The study found agreements which improperly limited a nursing home’s obligations. Others allowed discharges for vague reasons, or stuck relatives with bills they legally didn’t owe.

Toby S. Edelman, a spokesman for the Center for Medicare Advocacy in Washington, said similar studies in other states also show “ongoing concerns” with nursing home agreements.

The Missouri study found that nursing homes protect themselves by persuading seniors to waive their right to a jury trial. In 18 percent of the agreements, seniors were required to submit a dispute to arbitration, rather than sue in court.   Trial lawyers contend they have successfully fought the provisions in court as unconstitutional and unenforceable in health-care cases.

The study contends the agreements also thwart federal law by inserting provisions making it easier to evict residents. Federal law sets out six conditions that justify evicting a resident.

Carlson, the study’s author, said that under the federal reform law nursing homes cannot require a relative or a friend to become financially liable for nursing home expenses. Yet, the study found that 19 percent of the admission agreements required a financial guarantee “in direct violation” of federal law.   Such “co-guarantor clauses” are becoming more common.

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The Columbia Tribune of Missouri has an article about a new study that shows nursing home admission paperwork to be confusing and takes away a resident's fundamanetal rights without explanation to the residents.

Nursing home admission agreements are confusing, can run 10 pages or more with unfamiliar language, are often signed in moments of distress, and force residents to sign away fundamental rights.

"It’s a situation where they’re worried about health, they’re worried about their family, and often they’ll just sign anything," said Richard Royer, CEO of Primaris, a Medicare quality improvement organization.

A study released today by the not-for-profit National Senior Citizens Law Center evaluated 175 legal agreements signed by residents who entered Missouri nursing homes. The study found many agreements allow facilities to evict residents for almost any reason, limit their rights to be visited by family members and require family or friends to assume personal financial liability for care. All such provisions are in violation of the federal Nursing Home Reform Act of 1987.

The study found that 17 percent of surveyed nursing homes reserved the right to evict someone for any reason even though federal law lists only six valid reasons for eviction. Consequently, patients with Alzheimer’s disease and dementia or residents who complain about the care received are being evicted for being "difficult."

The survey also found that 19 percent of nursing homes required a guarantee asking a family member or sponsor to take financial responsibility for the cost of care. The study argues it’s illegal to require fiscal responsibility and that Medicaid is required to cover expenses when a resident is unable to pay.

The study found 5 percent of agreements instituted visiting hours for residents, also in violation of the federal law.

One of the things not mentioned in the study but is very disconcerting to many residents is the inclusion of an arbitration clause hidden in the admissions paperwork that waives the resident's right to a jury trial if the resident gets abused or neglected.

The study and a consumer guide outlining the rights of residents are available online at nsclc.org.

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Here is a sample Power of Attorney that anyone can print and use as long as it is notarized and signed properly.  This power of attorney does not authorize the POA to sign an arbitration agreement and prohibts the POA from waiving the signatory's right to a jury trial.  This should help combat the hidden arbitration clauses that the nursing home industry hides in their admissions paperwork.

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Buried within most admission contracts for nursing homes are unconscionable and hidden clauses requiring mandatory binding arbitration in case of a dispute. These clauses stack the deck against consumers and victims of nursing home abuse and neglect.  These hidden clauses force residents to sign away their rights before a dispute even arises, and denying them access to the courts, often the only place regular Americans can face powerful interests on a level playing field. 

The Arbitration Fairness Act of 2007 would secure citizens’ seventh amendment right to a trial by jury and allow consumers to get a fair opportunity.

In arbitration, consumers are forced into a private legal system that is stacked against regular Americans, where they must pay steep filing fees—often more than $750 just to file a case. These fees do not include the arbitrators’ hourly charges, which range from $200 to $500 per hour, often bringing the total cost of arbitration to tens of thousands of dollars for consumers.

While in arbitration, consumers’ fates are in the hands of a supposedly impartial arbitrator. However, the arbitrators are often biased in favor of businesses, since they will be repeat users of a particular arbitrator. Once an arbitrator reaches a decision, it is almost impossible to appeal and the arbitrators do not have to justify any of their findings.

The Arbitration Fairness Act of 2007 would eliminate these unfair contracts and preserve the right to a trial by jury—a pillar of our civil justice system.

We urge you to take action by telling your Senators and Representative to oppose binding mandatory arbitration clauses in consumers’ contracts by supporting the Arbitration Fairness Act of 2007.

Please go this website and fill out this form to fight mandatory arbitration

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Many nursing homes attempt to evade liability by inserting arbitration clauses in nursing home admission paperwork without telling the resident or their loved ones.  Unfortunately, many courts enforce these unconscionable agreements.

A son should be precluded from filing a wrongful-death suit against a nursing home where he had signed a binding arbitration agreement prior to admitting his father to the facility, the Supreme Judicial Court has ruled.

The son, a college-educated claims manager, argued that since his Superior Court complaint named a treating physician and other medical personnel who were not parties to the arbitration agreement, enforcing it would unfairly require him to address part of the case in court and part of it in arbitration.

But the SJC disagreed and reversed a Superior Court judge's ruling after finding that nothing in the arbitration provision was procedurally or substantively unconscionable.

"[The son's] failure to read the agreement 'word-for-word' makes no difference, as we have long held that, absent fraud, a party's failure to read or understand a contract provision does not free him from its obligations," said Justice Robert J. Cordy, writing for the court.

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Although many courts enforce arbitration clauses in admissions paperwork, some clauses have not been enforced because the person who signed the arbitration agreement did not have legal authority or there was no agreement on who would arbitrate the case.

Denial of Arbitration--South Carolina

Fields v. Magnolia Place, 04-CP-42-555 (Feb. 7, 2005)

The Honorable Judge Roger L. Couch denied Defendant’s Motion to Compel Arbitration because signatory did not have legal authority to bind the resident, and that the arbitration provision was vague, indefinite, and lacking material terms.

 Benton v. Summit Place, Inc., 2004-CP-23-0267 (Nov. 17, 2004)  Here is Judge Hill Order denying Defendants' Motion to Reconsider.

The Honorable Judge D. Garrison Hill denied Defendant’s Motion to Compel Arbitration because there was no mutual assent to arbitrate existed because the chosen arbitration forum is no longer available.

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DETRA L. BRUNER, as next of kin of LEOLA BRUNER (DEPP), deceased,
Appellee, v. TIMBERLANE MANOR LIMITED PARTNERSHIP, and its successor
in interest, TIMBERLANE MANOR LIMITED LIABILITY COMPANY, d/b/a
GRACE LIVING CENTER, Appellants.

No. 103,028

SUPREME COURT OF OKLAHOMA

2006 OK 90; 2006 Okla. LEXIS 94

December 12, 2006, Decided

Detra L. Bruner filed suit against Grace Living Center, alleging that her mother's death was caused by the nursing home's negligent care. Grace Living Center filed a motion to dismiss or in the alternative to compel arbitration and stay the proceedings. The district court found that the nursing home care did not involve interstate commerce; the federal arbitration statutes are not applicable to the nursing home admission agreement; and, the binding arbitration provision in the nursing home admission form is unenforceable under § 1-1939(D) and (E) of the Oklahoma Nursing Home Care Act, 63 O.S.2001, §§

1-1901, et seq. The district court denied the motion to dismiss or in the alternative to compel arbitration. Grace Living Center appealed. This Court retained the appeal. Affirmed

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