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

The Mississippi Supreme Court recently ruled in Adams Community Care,Center L.L.C. v. Reed   against one of the more ridiculous positions that the nursing home industry has put forth in arbitration disputes, the third party beneficiary argument even when a valid arbitration agreement doesn't exist. See Opinion here.

The Court ruled that the son did not have authority to bind  his mother's claim to arbitration:

"To determine whether there is a valid arbitration agreement, we apply the law of contracts. See Grenada Living Ctr., LLC v. Coleman, 961 So. 2d 33, 36-37 (Miss. 2007).  The elements of a contract are “(1) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation.” Id. at 37. At issue is element four, whether James or Larry Wesley had the “legal capacity” to enter into the admissions agreement with ACNC which contained an arbitration provision.

ACNC argues that James and Larry Wesley had apparent authority because they represented to the nursing home via DeLisa Smith that each was the responsible party for Annie Reed. In order to recover under a theory of apparent authority, the claimant must put forth “sufficient evidence” of “(1) acts or conduct of the principal indicating the agent’s authority, (2) reasonable reliance upon those acts by a third person, and (3) a detrimental change in position by the third person as a result of that reliance.” Eaton v. Porter, 645 So.2d 1323, 1325 (Miss. 1994) (emphasis added). After reviewing the record, we find that ACNC has failed to put forth any evidence of prong one; therefore, the Court need not address prongs two and three.

For a third-party beneficiary to exist, there must first exist a valid contract executed by one with “legal capacity” to enter the contract. See Grenada Living Ctr., LLC v. Coleman, 961 So. 2d 33, 36-37 (Miss. 2007). ACNC has failed to put forth any evidence of James or Larry Wesley’s legal capacity to execute the admissions agreement.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Dallas News had an article about the role that Ombudsman's office has in advocating for nursing home residents.  The article stresses the importance of their role and the breadth of their power and responsibility. However, it all depends on the State's funding and the specific Ombudsman's knowledge of the regulations and standard of care.

The article revolves around Jennelle Dixson who is a nursing home ombudsman who looks out for residents too frail or too afraid to speak up about problems such as inattentive caregivers, dirty bedding and long delays in getting medication.   Ombudsmen are among the most important watchdogs of the nursing home industry.  The frequent prods and nudges they give nursing home administrators can have almost as much influence on the quality of care as the annual inspections that government regulators make.

The Senior Source, the nonprofit agency that runs the state's long-term ombudsman program in Dallas County, sends ombudsmen to 63 nursing homes at least once a month and 160 assisted-living communities at least twice a year.  Dixson checks on more than 1,000 residents in 17 nursing homes throughout Dallas. She visits most of the homes weekly. 

Forty-three percent of Americans who reach 65 can expect to spend time in one of the nation's 15,281 nursing homes. The average stay is almost 2 ½ years.

Though ombudsmen often meet an uncooperative administrator, their visits sometimes produce results because most nursing homes prefer to resolve issues before they escalate into black marks during state inspections. Last year, the Senior Source's ombudsmen received 8,600 complaints about nursing homes and 600 complaints about assisted-living communities in Dallas County.

Swanson says complaints involving abuse or serious neglect go to the Texas Department of Aging and Disability Services, the state agency that inspects and regulates nursing homes and assisted-living communities. "The most common complaint we receive is that caregivers take too long to answer residents' call buttons," Swanson said. "Patients may wait an hour for aides to escort them to the bathroom."   This lack of response often results in falls when residents attempt to make it to the bathroom without assistance.

I don't doubt that Mrs. Dixson is a caring ombudsman who benefits residents under her jurisdiction but the Ombudsman in South Carolina do absolutely nothing for the residents.  They do not act like advocates and often defend the actions or inactions of the nursing homes all the time stating "that is what my boss tells me to do."  The ombudsmen in South Carolina do not feel they have any power or right to tell the nursing homes how to provide care to the residents. If that is true, what is the point of their existence?  South Carolina needs to train the ombudsmen and give them the power and authority to challenge the nursing homes to prevent neglect and abuse.

• Email This
• Print
• Comments
• Trackbacks
• Share Link