It’s a key point in many nursing home abuse lawsuits because arbitration agreements prohibit residents – and their estates – from suing the nursing home in court. Instead, they are forced to seek resolution of any dispute from a binding arbitration. There are so many downsides to arbitration for the plaintiff, starting with the fact that arbitrators tend to decide cases more favorably toward the nursing homes. Beyond that, the proceedings aren’t public and arbitrators aren’t even bound to abide by the law.
Although arbitration agreements are binding contracts, the good news is that courts are analyzing them with a great deal more scrutiny than ever before. There are a few arguments that injury lawyers who handle nursing home abuse cases can approach this.
First, if the resident signed off on the paperwork, we would want to know whether the resident had the capacity mentally to sign his or her own contracts. If a court declared the person legally incompetent and a guardian had been appointed, this argument is fairly straightforward. Beyond, that, some courts have held that while an individual may forfeit his or her right to litigate personal injury claims, that does not apply to the heir’s wrongful death claims.
Secondly, if the resident’s family member is the one who inked the arbitration paperwork, the question will be whether that individual had the legal authority to sign away the residents’ legal rights. Often, the person is designated as the resident’s “personal representative.” However, courts have deemed this insufficient. Instead, it has been held that the person signing must be the resident’s legal representative.
According to court records, the daughter signed the nursing home admission agreement, which contained an arbitration provision, on behalf of her father when he was first admitted in 2007.
In 2011, the man was rushed to a nearby hospital with several serious, life-threatening bed sores across his body. Ultimately, he died several months later as a complication of his many bed sores.
After he died, his daughter filed a wrongful death lawsuit against the nursing home, alleging the facility staffers allowed him to develop these serious and painful ulcers and that he also suffered weigh loss, skin tears, dehydration, infections other injuries as a result of abuse and neglect.
Defense responded with a motion to compel arbitration, citing the admission agreement plaintiff had signed. Plaintiff argued the agreement was unconscionable, and further, she didn’t have the legal authority to sign the document on behalf of her father.
Defense countered with medical records from decedent’s primary care doctor months before his admission indicating he was “obviously demented at this time.” Plaintiff responded that this was only a passing comment on her father’s condition at that moment, not his overall capacity. Besides, she had never been named his legal representative or guardian.
Trial court granted the nursing home’s motion to compel. The Mississippi Supreme Court reversed, finding state statute required that a primary care doctor must assert that a patient lacks capacity before a surrogate can properly make a healthcare decision for that person. The record in this case did not support a finding that decedent’s doctor had made this finding.
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Tarvin v. CLC of Jackson, June 23, 2016, Mississippi Supreme Court
More Blog Entries:
Williams v. CMO Mgmt. – Nursing Home Abuse Lawsuit to be Retried, June 23, 2016, Port St. Lucie Nursing Home Abuse Attorney Blog