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

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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Oklahoma Center for Consumer & Patient Safety
PO Box 4481, Tulsa, OK 74159-0481

FOR IMMEDIATE RELEASE:

Contact: Hugh M. Robert, Ex Dir 918-850-0293 hugh@okccps.org

April 7, 2008

HOUSE COMMITTEE KILLS NURSING HOME INSURANCE REQUIREMENT:

REPLACES BILL TO FAVOR COMMITTEE CHAIR

Tulsa, OK – The Public Health Committee in the Oklahoma House of Representatives considered the amended version of the bi-partisan approved Senate Bill 1549 this morning. Just minutes before the committee meeting was scheduled to begin, Representative Cox, the owner of several nursing homes, submitted a committee substitute which stripped out the insurance requirement. The committee members voted 10-9 to consider the committee substitute, falling one vote short of being able to hear the bill in the form already approved by the Senate.

“It is sad that Dr. Cox put his personal financial interest in front of requiring nursing homes be financially responsible,” said Hugh M. Robert, Executive Director of the Oklahoma Center for Consumer and Patient Safety. Robert went on to say “the Oklahoma Senate had overwhelmingly supported the amended bill and Dr. Cox, who purportedly operates his nursing homes without insurance, today showed his personal financial interest is more important to him than protecting his constituents or the citizens of the State of Oklahoma.”

The amended bill would have required nursing home operators to prove they have sufficient assets to cover claims of resident abuse or neglect. If the nursing home operator fails to keep sufficient assets and does not carry liability insurance the officers, directors and shareholders of the nursing home operator would be personally liable to a nursing home resident or their family when someone is abused or neglected.

One reason Dr. Cox as well as the nursing home lobby has cited for not carrying insurance is that the Medicaid reimbursement levels not being high enough to provide the owners with large profits and pay for insurance. However, this does not take into account the private pay residents and if the issue is with reimbursement rates, then Dr. Cox, in his capacity as a representative should work on reimbursement rates, not blocking a resident or family of a resident from holding responsible a nursing home who abuses or neglects a loved one.

If a nursing home resident is neglected or abused they should have a remedy. Robert comments “we require people who drive cars to carry mandatory insurance, why should nursing homes be any different.” “Forcing nursing home operators to show they are financially sound in order to have a license to take care of our elderly citizens just makes common sense, especially with the growing elderly population” Robert says. Most nursing home operators are for profit and carrying liability insurance is a legitimate cost of doing business. A nursing home does not have to choose between providing good care and being financially responsible, they should be required to do both.

About the Oklahoma Center for Consumer and Patient Safety- Please call 800-994-6025 or visit www.okccps.org.

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Randy Ellis staff writer for NewsOk.com has a sad story about a neglected resident who did not get questions or compensation because the nursing home had no assets and no liability insurance.  Below are excerpts of the story:

The story refers to a family who received a telephone call that their mother had been injured at The Gardens nursing home in Sapulpa. Hospital X-rays revealed her mother had suffered spiral fractures to both legs.  Since that type of injury often is caused by abuse or neglect, the family sued the nursing home to get answers about what happened.  However, the nursing home had no medical liability insurance coverage. 

The number of nursing homes that have dropped medical liability insurance coverage has skyrocketed in recent years. There are now at least 56 uninsured homes with 6,621 beds, according to the Tulsa-based Oklahoma Center for Consumer & Patient Safety.
"Based on information provided to the Center, over 20 percent of the beds in Oklahoma are in nursing homes that refuse to carry insurance,” said Hugh M. Robert, executive director of the nonprofit group. "A state study last year speculated the number may be as high as 65 percent.”

Legislation introduced by Sen. Richard Lerblance, D-Hartshorne, would require nursing homes either to carry medical liability insurance or prove they have sufficient assets to pay substantial damages if they are found responsible for injuries caused by abuse or neglect.  It is difficult for consumers to discover that information on their own because nursing home owners often play a "corporate shell game."

One woman had maggots crawling out of her air cast because employees at her Oklahoma City nursing home had not cleaned beneath it and open pressure sores had developed. An Edmond nursing home patient was left on a bed pan so long her tail bone stuck to it, and a woman at a Frederick nursing home died after becoming so dehydrated that her tongue stuck to the roof of her mouth, attorneys said.

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